Freedom of Expression

1.

Freedom of Expression

2.

Article 10, ECHR
1.
Everyone has the right to freedom of
expression. This right shall include freedom to
hold opinion and to receive and impart
information and ideas without interference by
public authorities and regardless of frontiers.
This article shall not prevent states from
requiring the licensing of broadcasting, television
or cinema enterprises

3.

Article 10, ECHR
2.
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 and crime,
for the protection of health and morals, for the
protection of the rights of others, for preventing
the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary.

4.

General considerations
• One of the essential foundations of a democratic
society, without which it may not be possible to enjoy
many of the other rights protected by the ECHR (Jersild v
Denmark (23.09.1994))
• The media in particular attracts special protection
because of their role as a public watchdog (Castells v
Spain (23.04.1992))
• Restrictions of freedom of expression are subjected to
very close scrutiny and must be convincingly established
(Sunday Times v UK (26.04.1979))

5.

The scope Of Article 10(1)
•Public Interest & Political Expression

6.

The scope Of Article 10(2)
Functioning of justice

7.

The scope Of Article 10(3)
Expressing Morals & Religious Belief

8.

The scope Of Article 10(4)
Artistic Expression

9.

The scope Of Article 10(5)
Commercial Speech

10.

11.

The scope Of Article 10(6)
Offensive, shocking, disturbing speech

12.

Prohibition of abuse of rights or
denying the right of freedom of
expression
Article 17, ECHR, provides that:
Nothing in this Convention may be interpreted as
implying for any state, group or person any right to
engage in any activity or perform any act aimed a the
destruction of any of the rights and freedoms set forth
herein or at their limitation to a greater extent than is
provided for in this Convention.
Its purpose is to prevent extremists using the
ECHR to destroy the rights of others

13.

Limits of Article 10(1) or what is not
included (1)
Examples found not to fall within the scope of
Article 10(1):
― Residence in a particular country of a journalist
― Loss of a journalist’s job because of closure of a
Soviet press agency
― Physical expression of feelings
Right of Access to Information:
― Leander v Sweden (26 March 1987)
― Gaskin v UK (7 July 1989)
― Guerra v Italy (19 February 1998)

14.

Protection of Article 10(1)
The medium of expression is protected as well as
its content. This includes:
• Adverts
• Pictures
• Videos and cinema
• Protest
• Conduct intended to convey ideas, such as clothes
Truth, opinions and acting in ‘good faith’
Licensing of broadcasting, TV & cinema

15.

Justifying restrictions on freedom of
expression under Article 10(2)
National Security
Territorial Integrity
Public Safety
Prevention of Disorder or Crime
Protection of Health or Morals
Protection of the Reputation or Rights of Others
Preventing the Disclosure of Information Received in
Confidence
Maintaining the Authority and Impartiality of the
Judiciary

16.

Restrictions on freedom of expression
(1)
Prior restraint
Criminal sanctions

17.

Restrictions on freedom of expression
(2)
Public interest defences

18.

Restrictions on freedom of expression
(3)
Defamation proceedings

19.

Restrictions on freedom of expression
(4)
Journalists’ sources

20.

Restrictions on freedom of expression
(5)
Incitement & race hatred

21.

When can restrictions on freedom of
expression be made?
1.
Any restriction on civil and political rights must be
prescribed by law.
2.
The restriction must be justified by one of the aims
recognised under the European Convention.
3.
The restriction must be shown to be “necessary in a
democratic society”.
4.
Any qualification to rights cannot be applied in a
discriminatory fashion.