Article 10

Question 1

What does Article 10 cover?

Answer 1

Right to freedom of expression
- Freedom to hold opinions, impart info and receive info/ideas without state interference, regardless of frontiers (Autronic AG v Switzerland)

Question 2

What is the scope of Art 10(1)?

Answer 2

• Speaking
• Writing
• Art
• Social media
• Press
• Civil/political matters

Question 3

What type of right is Article 10?

Answer 3

• Fundamental
• Qualified
• Wide margin of appreciation

Question 4

What is the importance of Article 10?

Answer 4

• Inform parl of public opinion
• Influence law reform
• Makes people heard

Question 5

What are the three types of freedom afforded by Article 10?

Answer 5

• Freedom to hold opinions
• Freedom to express opinions and impart info/ideas
• Freedom to receive info/ideas

Question 6

Explain the law on the freedom to hold opinions

Answer 6

• Absolute right (cannot be limited)
• Cannot be interfered with/indoctrinated/forced to share by the state
• State cannot discriminate based on opinions (Vogt v Germany)

Question 7

What 5 circumstances types of expression does the freedom to express opinions cover?

Answer 7

• Freedom of the press
• Political expression
• Artistic expression
• Civil/public interest
• Incitement of hatred

Question 8

Explain the law on freedom of the press (freedom to express opinions)

Answer 8

• Narrow margin
• Journalists not have to disclose sources (Goodwin v UK)
• Unlawful if breaches other statute (SpyCatcher)
• Often conflicts Art 8 (Axel Springer v Germany)
  –> Consider public interest, notoriety, previous behaviour, truth, consequence, severity of sanction

Question 9

Explain the law on political expression (freedom to express opinions)

Answer 9

• Narrow margin
• Political debates and free elections form the bedrock of society
• ECtHR encourages criticism of govt as a watchdog on the state
• Better to criticise politicians than normal people (Lingens v Austria)

Question 10

Explain the law on artistic expression (freedom to express opinions)

Answer 10

• Wide margin (multiculturalism - Otto Preminger v Austria)
• Frequently conflicts oth articles eg. 9 (Muller v Switzerland, Gibson, BBK v Austria)

Question 11

Explain the law on civil/public interest (freedom to express opinions)

Answer 11

• Right to be properly informed (Sunday Times v UK)
• Right to protest as a matter of public interest (Morris v UK)
• Covers offensive/shocking views (Jersild v Denmark, Monnat v Switzerland)

Question 12

Explain the law on incitement of hatred (freedom to express opinions)

Answer 12

• Not cover hate speech as undermines EHCR
• State can interfere for legit aims (Garaudy v France)

Question 13

Explain the law on freedom to receive info and ideas

Answer 13

• Right to gather/seek info from lawful sources
• State not have to provide info (Guerra v Italy)
• State provided info must be fair and impartial

Question 14

What are the limitations under Art 10(2)?

Answer 14

• In accordance with law
  –> Breach of confidence
  –> Defamation
  –> Outraging public decency
  –> Obscene Publications Act 1959
  –> Theatres Act 1968
  –> Broadcasting Act 1990
  –> Defamation Act 2013
• Necessary in a democratic society
  –> To meet a pressing social need
• Proportionate
  –> Aim justifies interference
  –> Minimal interference
  –> Interference not outweigh objective
  –> Not arbitrary/unfair/irrational
  –> Measure connected to aim
• Legitimate aim
  –> National security
  |–> No defence of public interest - SpyCatcher Case)
  –> Territorial integrity/public safety
  |–> Shaylar
  –> Prevention of crime/disorder
  |–> Garaudy v France
  |–> Brind v UK
  |–> Howell
  |–> POA 1986
  –> Protection of health/morals
  |–> Outraging public decency (Gibson)
  |–> Obscene Publications Act (Muller v Switzerland)
  –> Protection of the rights of others
  |–> Bedat v Switzerland
  –> Prevention of disclosure of confidential info
  |–> PA wrongdoing > duty of conf (Heinisch v Germany)
  –> Maintaining judicial authority/impartiality
  |–> Restrictions on press releasing before trial (Sunday Times v UK, Bedat v Switzerland)
  |–> Offence to record in Ct (Pinto Coelho v Portugal)
  |–> Jury equity

Question 15

Evaluate Article 10

Answer 15

• Fundamental and predates ECHR/HRA (Bill of Rights, speakers corner)
• Broad interpretation = reflect changing society
• Broadcasting licence requirements = conflict however protect against indoctrination
• Narrow margin = higher value rights to protect individuals
• Wide margin = lower value rights as MS has more knowledge (ECtHR rule in state favour)
• Qualified = utilitarian, conflicts universality and fairness
• Inconsistent rulings = Otto Preminger v later Austrian cases
• Illogical distinctions = hate speech and incitement of hatred
• No hierarchy = leads to inconsistency
• Parliamentary privilege = abused however act in public interest
• ## Outdated = ECHR 1950 however living article