Article 10

Question 1

Step 1: What is Article 10?

Answer 1

Article 10 is the right of freedom of expression. This is a qualified right so the state can interfere with the right so long as it’s justified under Article 10 (2)

Question 2

Step 2: How does Article 10 relate to the HRA 1998?

s.7 and s.6

Answer 2

s.7 (b) HRA 1998 allows a person who claims a public authority has acted unlawfully can rely on the Convention rights or rights concerned in any legal proceedings, with s.6 (3) defining a public authority as including (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature

Question 3

Step 3: How does Article 10 relate to the HRA 1998?

s.2

Answer 3

s.2 (1) HRA however, makes it possible for a court of tribunal determining a question which has arisen in connection with a Convention right must take into account any judgements of the ECtHR

Question 4

Step 4: Article 10 (1) protects the freedom to…

Answer 4

• hold opinions
• impart information and ideas
• recieve informaiton and ideas
  
  • Guerra v Italy: the state is not under a positive obligation to provide information. But this restriction has been overcome in UK law as seen in Sarah’s Law, Freedom of Information Act 2000 and the Data Protection Act 2018

Question 5

Step 5: Under Article 10 (1) some forms of expression are given a high value

Answer 5

high value = narrow margin of appreciation (ie. no wiggle room)

• Political expression - political debate and free elections are part of the foundations of a democratic system. The press provides an important role and should be able to scrutinise the government
  
  • R v BBC
• Public interest expression
  
  • Steel and Morris v UK
  • Sunday Times v UK

Question 6

Step 6: Under Article 10 (1) some forms of expression are given a low value

Answer 6

low value = wide margin (ie. more wiggle room)

• Artistic expression - some countries give a higher value to artistic expression than others, therefore the ECtHR applies a wide margin of appreciation
  
  • Otto-Preminger-Institut v Austria
• Incitement of hatred - an individual cannot argue a violation under Article 10 for thier right to express ‘hate speech’ as Article 17 deals with hate speech and states one human right cannot be used to undermine another human right. But incitement of hatred can be dealt with under Article 10
  
  • Garaudy v France

Question 7

Step 7: Freedom of expression under UK Law

Answer 7

Freedom of expression is regarded highly in the UK

Some information regarding the state is protected under the Official Secrets Act 1989, but Freedom of Information Act 2000 allows access to state information

Contempt of Court Act 1981 limits expression in the courtroom that could undermine the right to a fair trial (Article 6)

s.12 HRA places importance on artistic, journalistic and literary expression and forces to courts to consider Article 10 even if they aren’t claiming under it

Question 8

Step 8: Freedom of expression under UK Law

Case Law

Answer 8

• Political expression
  
  • R (on the application of pro Life Alliance) v BBC
• Public protest
  
  • Laporte
  • Munim Abdul and ors v DPP

Question 9

Step 9: Article 10 (2)

Answer 9

Article 10(2) contains the conditions that the state must meet if they wish to limit this right. Any limitation must be:

• prescribed by law
• have a legitimate aim
• be necessary in a democratic society

Question 10

Step 10: Article 10 (2)

Prescribed by law

Answer 10

ie. there is a law that allows for it to be taken away. Must be clear, precise, predictable and not be arbitrary

Laws which may justify interfernce with this right

• Obscene Publications Act 1959 and 1964
• Theatres Act 1968
• Broadcasting Act 1990
• Protection from Harassment Act 1997
• Malicious Communication Act 1998
• R v Gibson - outraging public decency (foetus earrings)
• R v Howell - breach of the peace

Question 11

Step 10: Article 10 (2)

Prescribed by law

Public Order Act 1986

Answer 11

Public Order Act 1986

s.1 riot, s.2 violent disorder, s.3 affray, s.4 causing fear or provocation of violence, s.4A causing intentional harassment, alarm or distress, and s.5 causing harassment, alarm or distress

Question 12

Step 12: Article 10 (2)

Prescribed by law: Trespass to land

s.1 Public Order Act 1986

Answer 12

Riot

12+ people use/threaten unlawful violence for a common purpose and their combines conduct would cause a reasonable person to fear for their safety

Question 13

Step 12: Article 10 (2)

Prescribed by law: Trespass to land

s.2 Public Order Act 1986

Answer 13

Violent disorder

3+ people use/threaten unlawful violence and their combined conduct would cause a reasonable person to fear for their safety

Question 14

Step 12: Article 10 (2)

Prescribed by law: Trespass to land

s.3 Public Order Act 1986

Answer 14

affray

1 person uses/threatens unlawful violence to another and their conduct would cause a reasonable person to fear for their safety

Question 15

Step 12: Article 10 (2)

Prescribed by law: Trespass to land

s.4 Public Order Act 1986

Answer 15

causing fear or provocation of violence

intent to cause a person harassment, alarm, or distress, Ising threatening behaviour, or displays which are threatening. Intent to cause that person to believe that immediate unlawful violence will be used against him or another or be provoked

Question 16

Step 12: Article 10 (2)

Prescribed by law: Trespass to land

s.4A Public Order Act 1986

Answer 16

causing intentional harassment, alarm, or distress

intent to cause a person harassment, arm or distress using threateming/disorderly behaviour or visibly displays signs of threats causing harassment, alarm or distress

Question 17

Step 12: Article 10 (2)

Prescribed by law: Trespass to land

s.5 Public Order Act 1986

Answer 17

causing harassment, alarm or distress

using threatening or disorderly behaviour. Visible displays of threatening or abusive language within the hearing or sight of a person likely to cause harassment, alarm or distress

Question 18

Step 11: Article 10 (2)

Have a legitimate aim

Answer 18

• interests of national security
• territorial integrity or 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 recieved in confidence
• maintaining the authority and impartiality of the judiciary

Question 19

Step 11: Article 10 (2)

Have a legitimate aim

Interests of national security

Answer 19

Observer v UK

Question 20

Step 11: Article 10 (2)

Have a legitimate aim

Territorial integrity or public safety

Answer 20

R v Shaylor

Question 21

Step 11: Article 10 (2)

Have a legitimate aim

Prevention of disorder or crime

Answer 21

Shurek v Turkey

Question 22

Step 11: Article 10 (2)

Have a legitimate aim

Protection of health or morals

Answer 22

• Müller v Switzerland
• Open Door and Dublin Well Woman v Ireland
• Obscene Publications Act 1959
• Broadcasting Act 1990
• Theatres Act 1968
• R v Gibson

Question 23

Step 11: Article 10 (2)

Have a legitimate aim

Protection of the reputation or rights of others

Answer 23

• Bédat v Switzerland
• Defamation Act 2013
  
  • s.2 Truth
  • s.3 Honest Opinion
  • s.4 Publication matter of public interest
  • s.5 Operators of websites
  • s.6 Peer Reviewed statement in scientific or academic journal
  • s.7 Reports protected by privilege

Question 24

Step 11: Article 10 (2)

Have a legitimate aim

Preventing the disclosure of information recieved in confidence

Coco v AN Clark

Answer 24

• Coco v A N Clark (Engineers) Ltd

1. The information has ‘the necessary quality of confidence about it’
2. The information must have been imparted in circumstances with an obligation of confidence
3. There must be an unauthorised use of that information to the detriment of the party communicating it

• Campbell v MGN

Question 25

Step 11: Article 10 (2) Have a legitimate aim Preventing the disclosure of information recieved in confidence

Answer 25

Attorney General v Observer * The duty of confidentiality only applies whilst the information is confidential * The duty of confidentiality does not apply to useless information or trivia * Although confidence should be preserved and protected by law, there may be some other public interest that favours disclosure

Question 26

Step 11: Article 10 (2) Have a legitimate aim Maintaining the authority and impartiality of the judiciary

Answer 26

Sunday Times v UK

Question 27

Step 12: Article 10 (2) Be necessary in a democratic society

Answer 27

* is it more proportionate? * weigh up the rights of the individual v the community * margin of appreciation * *Handyside v UK*

Question 28

Step 13: Balance between Article 8 and 10

Answer 28

Proportionality - weigh up Article 8 and Article 10 * Goodwin v UK * Axel Springer v Germany * Does the information contribute to a debate of general interest? * What is the notoriety of the person concerned and the subject matter of the report * Does it refer to prior conduct of the person concerned? * What was the method of obtaining the information and its veracity? * What is the content, form and consequences of the publication? * What is the severity of the sanction imposed? * Mosley v News Group Newspapers • Campbell v MGN * A v B (Flitcroft v MGN) * CC v AB

Question 29

Step 14: protection of identity

Answer 29

* Thompson and Venables v News Corp * Mills v News Group Newspapers

Question 30

Step 15: technology

Answer 30

Editorial Board of Parvoye Delo and Shtekel v Ukraine