freedom of expression Flashcards
(12 cards)
1
Q
source
A
article 40.6.1 - The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
art 10 of the ECHR
2
Q
justifications
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- The importance of discovering the truth
- As an aspect of self-development and self fulfilment
- Citizen participation in democracy
- Suspicion of Government
- ‘The major justification for granting freedom of expression a special status is that it performs a democratic function. It is true that it performs other functions, from education to entertainment, but it is the role of linking citizen to representative and ensuring accountability of administration and government on an on-going basis, which justifies its special character. In this connection media are a partner in the democratic process. Media freedom is not something that belongs or is of concern only to the press; it is a public freedom in which we all have an interest.’ – Kevin Boyle
Development
3
Q
where did the chilling effect come from
A
- Dombrowski v Pfister – Dombrowski was arrested under Lousina’s anti-communist law. A truckload of documents was seized by the police relation to an organization which a member of Louisiana’s legislature called ‘communist front’. However, the judge later quashed the arrest warrant ‘as not based on probable cause’
o Grand jury was convened to consider whether he should be prosecuted but Dombrowski sought a court injunction to prevent Pfister from prosecuting, or even threatening to prosecute him, as he claimed it violated his right to freedom of expression under the U.S Constitution
o Held: DC judge rejected the application – he failed to show sufficient injury as he could instead assert his right in his deference to any criminal prosecution. Moreover, it was not appropriate for courts to declare laws unconstitutional before any conviction was imposed.
o SC appeal: the court ruled Louisiana’s anti-communist law violated the First Amendment and granted a permanent injunction against prosecuting Dombrowski. The main issue was whether he had “standing,” as he hadn’t been convicted under the law.
o Held – he did have a standing because the threatened prosecution created a ‘chilling effect upon the exercise of First Amendment rights’, meaning it paralysed operations and threatened exposure of the identity of adherents to a locally unpopular cause, and further arrests and seizures will cause the organization inconvenience or worse.
o Number of provisions: ‘Communist front organisation’, “subversive organisation,” were “overly broad,” and “created a ‘danger zone’ within which protected expression may be inhibited.” The Court held that so long as the statute remained available to the State, a “chilling effect on protected expression” will exist.
o The Dombrowski judgment was delivered in 1964, and during the surrounding decade, chilling effect reasoning was applied by the U.S. SC in over 26 judgments
4
Q
development in ECHR - romanian case
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- Cupnǎnǎ and Mazǎre v Romania – case evolved around an article published which implied corruption of the Romanian Government. The publishers were then sued for defamation and insult – punishable under the Romanian Criminal Code. They were sentenced to prison term, prohibited from working as journalists a year after imprisonment, and ordered to pay a fine.
o The decision was appealed to Romanian SC which was dismissed –> applicants went to the ECtHR
o ECtHR – applicants alleged that the conviction was unlawful under Article 10 of the ECHR – interreference with the right of freedom of expression.
Held – there was interference with the right – the question is: whether it was justified? Whether the interference was necessary in a democratic society?
In order to do so, the Court looked whether there was a ‘pressing social need’ for interference, which they found to exist – the interference was meant to protect the reputation and dignity of the defamed person. However, it was not proportionate to the offence.
The Court noted that it must: “exercise the utmost caution where the measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern.”
The court found that by imposing criminal sanctions, upon the press for defamation, a chilling effect emerged.
Held: although interference was justified – it was not proportionate.
Judge Costa and Judge Tomassen held that imprisonment as a sanction for defamation was excessive, emphasizing that the threat of imprisonment hung over the journalists ‘like the sword of Damocles’.
5
Q
source disclosure case
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- Goodwin v United Kingdom – source-disclosure orders have a chilling effect on press freedom, meaning ‘sources may be deterred from assisting the press’
o to protect the press from this chilling effect the ECtHR fashioned a test that such orders may only be made when there is an ‘overriding requirements in the public interest’ – test UK courts failed to satisfy by ordering disclosure.
6
Q
where was it rejected
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- Kasabova v Bulgaria – a journalist who had been convicted for defaming a number of public officials, argued that placing of burden on defendants in criminal defamation trials to prove the truth of their statements had a chilling effect of the press.
o Court admitted that the rule might have a chilling effect on ‘publication of material whose truth may be difficult to establish in court of law’ but did not find that the rule violated the freedom of expression.
7
Q
freedom of expression of judges
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- Judges have freedom of expression, but national authorities must balance this with preserving judicial independence and impartiality. If authorities fail to strike this balance according to Convention standards, it may violate Article 10. Due to concerns over judicial independence, any interference with a judge’s freedom of expression requires special scrutiny by the Court.
- Wille v Liechtenstein – prince of Liechtenstein sent a letter to the President of the Liechtenstein Administrative Court where he critisised his publicly expressed opinion about the interpretation of the constitution and announced that he would not reappoint him to the incumbent post.
o Held: ‘The announcement by the Prince of his intention not to reappoint the applicant to a public post constituted a reprimand for the previous exercise by the applicant of his right to freedom of expression and, moreover, had a ‘chilling effect’ on the exercise by the applicant of his freedom of expression, as it was likely to discourage him from making statements of that kind in the future.’
8
Q
ECHR pro freedom of speech
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- Sunday Times v UK – the court sought to retrain publication of Sunday Times where they wrote about children with birth defects resulting from Thalidomide. ECtHR held that the law violated paper’s right to freedom of expression under Art 10
o The ECtHR sought to consider whether it was proportionate by assessing whether the interference was based on sufficient reasons rendered in ‘necessary in a democratic society’, placing emphasis on Thalidomide disaster.
o Held – that interference did not correspond to a social need sufficiently pressing to outweigh the public interest of freedom of expression and was not, therefore, proportionate. - Lingens v Australia – journalist prosecuted for alleged political libel for calling an Australian politician a nazi.
o Whilst the press must not overstep the bounds test for the protection of the reputation of the others, not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Furthermore, it offers the public one of the best means for discovering and forming an opinion on political leaders.
o Held: The limits of acceptable criticism are broader for politicians than for private individuals because politicians, by nature of their public role, knowingly expose themselves to intense scrutiny, therefore, interference with the freedom of speech was disproportionate.
9
Q
ECHR more protective
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- Tammer v Estonia – while balancing the conflicting rights, freedom of speech was not justified where the press called a minor public figure a ‘home wrecker’.
10
Q
ireland at the beginning
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- Murphy v Independent Radio and Television Commission – the applicant sought to advertise a video on the evidence of the resurrection. IRTC banned the broadcast on the basis that the add contravened with an act which prohibits broadcasting any religious end.
o SC: the Constitution guarantees freedom of expression, however, it is doubtful whether it is confined in those who wish to influence public opinion.
o Even though his rights were limited, it was held to be proportionate and for the common good. - State (Lynch) v Cooney – applicant sought to deliver election addresses on television and radio to which the broadcasting authority agreed. The Minister for Posts and Telegraphs made an order directing the broadcasting authority to refrain from broadcasting any political party.
o SC – The evidence presented by the respondent Minister was unchallenged and justified his belief that a broadcast supporting Sinn Féin or representing the organization could incite crime or undermine the State’s authority. Therefore, his decision under s.31(1) was not beyond the powers of the 1960 Act. - In Colgan v IRTC, the applicant, a member of Youth Defence, challenged the IRTC’s decision to prohibit the broadcast of an anti-abortion advertisement, deemed political. The High Court held that ‘political end’ included efforts to change the law and accepted that the restriction aimed to prevent unfair advantage in sensitive debates. Applying a proportionality approach, the Court found the blanket ban justifiable in protecting the common good.
11
Q
shift in ireland
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Later cases, on the other hand, show a shift towards protecting the press freedom. In Mahon v Post Publications Limited where the Planning Tribunal sought to prevent the media from publishing documents it marked as confidential before public hearings (‘prior restraint’). The Supreme Court rejected this, affirming that freedom of expression and the right to communicate information are constitutionally protected and inseparable, highlighting the essential role of a free press in a democratic society.
- Moreover, even though not expressly stated in Article 40.6.1, it can be seen form Reynolds v Malocco that the courts are more willing to protect private individuals. Here, the courts held that drugs allegations were defamatory as there was no evidence.
12
Q
reynolds defence
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A big influence for the section 26 of the Defamation Act was the UK case of Raynolds v Times Newspapers that developed the ‘Reynolds defence’ allowing journalists avoid liability for defamation where they acted reasonably and responsibly in relation to publication if it was in the public interest, even if later on the information turns out to be untrue. The House of Lords emphasised on the importance of freedom of expression in relation to public interest, however, it is crucial to balance the right with one’s reputation
