Week 20: Freedom of expression and prisoner voting rights Flashcards
(51 cards)
Examples of contempt of court (criminal contempt)
- Scandalising the court
- Prejudicial publications
When does something prima facie constitute defamation?
- The statement must refer to the claimant, either explicitly or (judged on the basis of the inferences that an ordinary sensible person would draw from what has been said) implicitly.
- The statement must be published—that is, it must be issued to someone other than the claimant or the defendant’s spouse.
- The statement must be defamatory.
In common law, what determines if a statement is considered defamatory?
if it ‘[substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency so to do’
Defamation Act 2013 on a ‘defamatory statement’
says that a statement will only be defamatory if ‘its publication has caused or is likely to cause serious harm to the reputation of the claimant’
What is Freedom of Expression?
- Freedom of expression is the right to express and receive opinions, ideas and information… Accompanying this right are responsibilities held by the government, by media, by technology intermediaries, and by citizens. It is subject to legal limits…
- Free for all? Freedom of expression in the digital age, 1st Report of Session 2021–22 HL Paper 54, p.5
What is the scope of freedom of expression
- The right extends further than just the right to make speeches. It extends to all forms of expression. Together, freedom of expression and freedom of association cover the right to form societies with lawful aims, even where those aims are not shared with the majority, and the right to peaceful protest.”
- Freedom of Speech in Universities Fourth Report of Session 2017–19 Report, HC 589, HL Paper 111 p.3
Describe freedom of expression as a value
- Is about individual autonomy
- Autonomous individuals should be free to express themselves (see e.g. Sadurski, Barendt)
- Autonomous individuals should also be able to hear and consider what others have to say
Explain freedom of expression as a democratic value
- allows essential expression and contesting of ideas (John Stuart Mill)
- ensures people can make informed choices (Alexander Miekeljohn)
- promotes tolerance (Joseph Raz)
- has constitutional value - Handyside v The UK (1979):
Why protect freedom of expression?
Freedom of speech has intrinsic value for individual autonomy
- People should be allowed to express themselves
- People should be able to hear and think about what others say
Freedom of speech has beneficial consequences
- Freely circulating ideas is the test of truth
- Freedom of speech is the ‘lifeblood of democracy’
How is freedom of expression limited
Legal safeguards protect those who may be vulnerable. One person’s abuse of their right to freedom of expression can have a chilling effect on others.
Despite being restricted it does not mean that you cant say anything that may be considered harmful or upsetting
Describe how the court balancing of values, rights and obligations in freedom of expression
In terms of values:
Free expression v Privacy and Public safety
In terms of rights:
Of Speakers v Of Listeners
- Appropriateness of limitations will depend on rationale for free expression
- There is a distinction between legal and political debate about freedom of expression
Explain the right to protest in UK law and under the ECHR
No explicit right to protest
Combination of freedom of association and freedom of expression = right to protest
In UK law
- “Peaceful protest has a long history in the United Kingdom and is a cornerstone of democracy… Many people value the right to protest, regarding it is an important way for citizens to express their opinions about a wide range of policy issues and to seek to influence the Government and other powerful organisations.” (JCHR, Demonstrating Respect for Rights, (2009), p.1
Under the ECHR
- “The right to peaceful protest is a cornerstone of democracy, which should be championed and protected rather than stifled. It is protected in law by the Human Rights Act 1998, as an aspect of the rights to freedom of expression and freedom of assembly, guaranteed by Articles 10 and 11 of the European Convention on Human Rights (ECHR). While restrictions on protest may be justified in the interests of preventing disorder and protecting the rights of others, a degree of tolerance towards disruption is necessary.” (JCHR, Legislative Scrutiny: Public Order Bill, (2022), p.1
Explain recent trends and issues regarding freedom of expression
Prevent duty – counter-terrorism measures
Press freedom and phone hacking – Leveson Inquiry, subsequent regulation and cases
Academic freedom – Higher Education (Freedom of Speech) Act 2023
Freedom of expression in the digital age – The Online Safety Act 2023
Protests – free speech, public order offences, climate campaigns, anti-war protest
Under which article is the right to freedom of expression protected by the ECHR
Article 10
Describe the scope of convention rights and protection
Absolute rights
- Rights that must be protected and cannot be limited (e.g. Art.3, freedom form torture)
Limited Rights
- Some rights can be limited under specific and finite circumstances (e.g. Art.5, right to liberty). The right and the circumstances in which limitation is lawful are set out in the article
Qualified rights
- For some rights a balance needs to be struck between the rights of individuals and the interests of others (e.g. Art.10, freedom of expression)
Derogation
- States can derogate from certain Convention rights in time of “war or other public emergency threatening the life of the nation.” (Art.15) The right will not apply during that time
What are absolute rights?
Rights that must be protected and cannot be limited (e.g. Art.3, freedom form torture)
What are limited rights?
Some rights can be limited under specific and finite circumstances (e.g. Art.5, right to liberty). The right and the circumstances in which limitation is lawful are set out in the article
What are qualified rights
For some rights a balance needs to be struck between the rights of individuals and the interests of others (e.g. Art.10, freedom of expression)
What is derogation
States can derogate from certain Convention rights in time of “war or other public emergency threatening the life of the nation.” (Art.15) The right will not apply during that time
What kind of right is the freedom of expression under the ECHR
qualified right
Describe the legitimate restrictions on article 10
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or a crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
What is protected by Article 10(1)
- Expression’ covers more than just ‘speech’:
- written or spoken words, pictures, images and actions intended to express an idea or present information (Müller and Others v Switzerland (1991) 13 EHRR 212)
- Offensive, shocking, disturbing information:
- Art.10 protects “the information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also, those that offend, shock or disturb; such are the demands of pluralism, tolerance and broad-mindedness without which there is no democratic society.” (Handyside v UK (1979-80) 1 EHRR 737)
- Opinions and value judgements:
- “… a careful distinction needs to be made between facts and value judgements. The existence of facts can be demonstrated, whereas the truth of value judgements is no susceptible of truth…[requiring proof of these judgements] is impossible… and infringes freedom of opinion.” Lingens v Austria (1986) 8 EHRR 407, para.46
Explain the importance of a free press
Lingens v Austria: questioning politician’s suitability for office:
“These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the ‘protection of the reputation of others’, it is nevertheless incumbent on them to impart information and ideas on political issues…Not only does the press have the task of imparting such information and ideas: the public has a right to receive them… Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.” (1986) 8 EHRR 407, paras 41-42
Thorgeirson v Iceland (1992) 14 EHRR 843 – allegations of brutality against police. applicant ordered to pay a fine following a publication of article allegating police brutality. Held interference wasnt proportionate.
Jersild v Denmark (1995) (1995) 19 EHRR 1 – programme about racist group. Journalist convicted of aiding spread of racist hate. Had interviewed group of young people who made racist remarks. Held conviction was breach FoE as they hadnt spread racist remarks themselves
Give examples of legitimate aims of article 10(2)
National security
Territorial integrity
Prevention of disorder or crime
Protection of health or morals
Protection of the reputation or rights of others
Preventing disclosure of information received in confidence
Maintaining the authority and impartiality of the judiciary
