Lecture 17: Freedom of Expression Flashcards
What is the intrinsic value of freedom of expression?
Freedom of expression matters because it supports personal autonomy—people should be free to speak and listen, as Sadurski argue.
How does freedom of expression serve democratic values?
Freedom of expression supports democracy by allowing informed choices (Meiklejohn), encouraging tolerance (Raz), and being a core part of a free society, as said in Handyside v UK (1979), para 49.
Is freedom of expression an unlimited right in the UK?
No—Free for All? (2012–22, HL Paper 54) says freedom of expression isn’t unlimited. Laws are needed to protect the vulnerable, and misuse can silence others.
What does the UK university free speech report say about lawful but disturbing expression?
The Freedom of Speech in Universities report (2017–19) says people have the right to free speech, protest, and form groups—even if their views are upsetting, as long as they’re legal.
What legal instrument governs freedom of expression in Europe?
Freedom of expression under Article 10 of the ECHR is a qualified right, meaning it can be limited in certain cases.
What does Article 10(1) ECHR protect?
Article 10(1) ECHR protects all kinds of expression—spoken, written, visual—even if it offends or shocks, as seen in Handyside and Müller.
Are opinions and value judgments protected under Article 10?
Yes—Lingens v Austria (1986) says value judgments are protected since they can’t be proven like facts, and forcing proof would breach free opinion.
What are the legitimate aims for restricting freedom of expression under Article 10(2)?
Legitimate limits on free expression include:
National security – Observer and Guardian v UK (1992)
Public order and crime prevention
Health or morals
Protecting others’ rights or reputations – e.g. Lingens, Otto-Preminger, Von Hannover, Garaudy, Perinçek
Confidentiality
Respect for the courts – Sunday Times (No.1) v UK (1979)
What is the first question the ECtHR asks when analyzing a qualified right?
The first question the ECtHR asks is whether there has been an interference with the right — that is, has the individual’s exercise of the right been restricted in some way?
What is the second question the ECtHR asks in its analysis?
The second question the ECtHR asks is whether the interference was “prescribed by law” — meaning the restriction must be based on a legal rule that is accessible and foreseeable.
What is the third question the ECtHR considers in evaluating a qualified right?
The third question the ECtHR considers is whether the interference pursued a legitimate aim — such as protecting national security, public safety, or the rights of others.
What is the fourth and final question the ECtHR asks in its analysis?
The fourth and final question the ECtHR asks is whether the interference was “necessary in a democratic society” — this means it must be proportionate and respond to a pressing social need.
What does interference with freedom of expression under Art. 10 include?
Interference can include restrictions or penalties, as seen in Wille v. Liechtenstein. In free speech cases, the focus is on whether the right is “chilled,” not how domestic courts label the interference.
What must interference with freedom of expression be based on to be considered legal?
It must be “prescribed by law,” meaning the law must be sufficiently precise and the consequences foreseeable.
What are the legitimate aims for restricting freedom of expression?
Legitimate aims are listed in Art. 10(2) and must be strictly followed. Any restriction must be “necessary in a democratic society” and proportionate to the aim pursued?
What is the “Margin of Appreciation” in the context of Art. 10?
The margin of appreciation means the European Court respects that countries may have different views due to their own legal and cultural traditions.
What did the ECtHR say about “necessity in a democratic society”?
In Sunday Times v. UK, the Court said that interference must correspond to a “pressing social need,” be proportionate, and have relevant and sufficient justifications.
What is the UK’s approach to freedom of expression under common law?
The UK treats freedom of speech as a basic right, with exceptions. Common law follows Article 10 of the European Convention, as shown in Derbyshire CC v The Times.
What is the test applied in the UK to assess whether interference with freedom of expression is necessary?
The court uses a four-question approach based on the ECtHR:
Is there a restriction/interference with the right?
Is the interference prescribed by law?
Does it pursue a legitimate aim?
Is it necessary in a democratic society?
What laws in the UK restrict freedom of expression for state security?
Laws like the Official Secrets Acts and Investigatory Powers Act control the release of sensitive state information, with few defenses and penalties for breaches.
How does UK law address academic freedom?
Concerns about limits on academic freedom, including protests and bureaucracy, led to laws like the Higher Education (Freedom of Speech) Act 2023, which protects free speech on university campuses.
What are the laws regulating obscene publications in the UK?
The Obscene Publications Act 1959 criminalizes the publication of obscene materials, and the Civic Government (Scotland) Act 1982 makes it an offence to display obscene material in public.
What is the standard for defamation in the UK?
The Defamation Act 2013 requires proof of harm to reputation. Defenses include truth, honest opinion, and public interest.
How does UK law protect privacy in relation to freedom of expression?
UK law protects privacy through “misuse of private information” claims, like in Campbell v Mirror Group Newspapers, where the court upheld confidentiality and protection from intrusions.
