Solicitors Qualifying Examination

Art 10: Freedom of expression | Public Law – SQE1 & SQE2 Exam

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Art 10: Freedom of expression
• Prior to HRA 1998, no positive right to free speech
o Residual right to expression as long as not prohibited by law
• Now, Art 10 incorporated via HRA: ‘freedom to hold opinions and to
receive and impart information and ideas without interference by public
authorities and regardless of frontiers’
• Art 10 = qualified right, which can be restricted where:
o Prescribed by law
o In pursuit of one or more legitimate aims (Art 10(2))
§ National security
§ Territorial integrity
§ Public safety
§ Prevention of disorder / 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
o Necessary in a democratic society (proportionate)
• S 12 HRA 1998 – protects freedom of expression when court considering
whether to grant relief that might affect this right ~ s 12(4) = ‘particular
regard’ for freedom of expression
© Liam Porritt 2020 2
Scope of Freedom of expression
• Freedom of expression: words, pictures, images and actions intended to
express idea / information
o Political opinion (Bowman v UK – distribution of political leaflets)
o Journalistic freedom (Goodwin v UK – journalist’s refusal to
disclose sources)
o Artistic expression (Müller v Switzerland)
o Commercial information (Colman v UK)
Handyside v UK
• Freedom of expression applies to ideas that offend, shock or disturb
the state or any sector of that population as they do to those
favourably received
o Here, seizure and criminal conviction due to Red Schoolbook
containing information re: sex education
o Morals are not homogeneous across Europe and thus national law
makers and courts are best placed to opine on the necessity of
restrictions and penalties under national law
o Significant ‘margin of appreciation’ in cases involving moral +
religious sensibilities
© Liam Porritt 2020 3
Freedom of information – interference allowed
R (Persey) v Secretary of State for Environment, Food & Rural Affairs [2003]
• HC: article does not impose a positive obligation on government to
provide an ‘open forum’ on the foot and mouth outbreak
Kennedy v The Charity Commission [2014]
• Journalist’s attempt under Freedom of Information Act 2000 o obtain
disclosure of information of inquiries into ‘Mariam appeal’ by
Commission
• Requests rejected under an exemption in s 32(2)
• Majority of SC: reinforced the lack of general right to ‘freedom of
information’ + absence of positive duty of disclosure under Art 10
• Lords Wilson and Carnwath dissented: emphasised the importance of
common law protection of fundamental rights ~ would have used powers
in s 3 HRA to read down necessary words into s 32(2) to achieve
compatibility
Animal Defenders International v UK [2013]
• NGO wishing to screen TV advert protesting against keeping and
exhibition of primates
• Young child in cage, of age where emotional intelligence equivalent to
primate’s
• Banned because infringed prohibition of political advertising under
Communications Act 2003
• 9 to 8 decision by ECtHR that not disproportionate interference b/c:
o Regulatory regime governing political broadcasting in UK had been
reviewed and validated by parliament and judiciary
o Ban only apply to advertising, not alternative media such as radio
and TV discussion programmes
o No European consensus on how to regulate political advertising
o UK government best placed to judge how to maintain democratic
integrity = could impose strict policy preventing wealthy
individuals / organisations buying disproportionate influence
© Liam Porritt 2020 4
Freedom of information – interference NOT allowed
R v Secretary of State for the Home Department, ex p. Simms [2000]
• SoS issued blanket requirement for journalists to sign an undertaking that
the results of interviews with prisoners would not be used in a
professional capacity
• Interviews w/ convicted murderers seeking to prove innocence ~ this
freedom of speech must be protected as it would be almost impossible
to prove innocence otherwise
• This decision was based on common law interpretation of freedom of
speech in general, rather than Art 10 + ECHR barely referenced by HoL
R v Secretary of State for Health, ex p. Wagstaff [2001]
• Holding in private the inquiry into multiple murders committed by GP,
Dr Harold Shipman
• Contrary to Art 10, as interference with reception of information that
others wished to impart
© Liam Porritt 2020 5
Restrictions on Freedom of Expression (by legitimate aim)
National security
R v Secretary of State for the Home Department, ex p. Brind – justified
• SoS directs recorded speech from leaders of certain organisations, inc.
Sinn Fein, not to be broadcast
• HoL: SoS had not exceeded discretion
• Brind and McLaughlin v UK – unsuccessful as:
o High margin of appreciation in national security cases, where
terrorism involved
o Limited interference with applicants’ rights
R (Lord Carlile and others) v Home Secretary [2014] – justified
• Home secretary excluded dissident Iranian politician, Maryam Rajavi,
from UK to prevent meeting with her in Westminster
• Justified on basis that this could damage UK-Iran relations and endanger
UK nationals in Iran
• SC: importance of meeting with her (Art 10) was not sufficient to risk
relationship with Iran, therefore = proportionate
The Observer and Guardian v UK– ½ justified, ½ unjustified
• Publication in newspaper of ‘Spycatcher’, written by former member of
British intelligence services
• Temporary injunctions granted pending permanent injunctions, for
breach of confidence
• First period of injunctions up to publication of the book in USA = NIADS,
as maintained confidentiality for as long as possible and proportionate to
this aim
• Second period following USA publication ≠ NIADS as damage already
done to national security, as maintaining ‘reputation’ of security services
is insufficient for injunction
© Liam Porritt 2020 6
Miranda v Home Secretary [2014] – unjustified
• Miranda stopped under TA 2000, Sch 7 para 2(1) (to determine whether
he was ‘concerned in the commission, preparation or instigation of acts of
terrorism’) + encrypted storage devices from Edward Snowden
confiscated
• Laws LJ rejected incompatibility with Art 10, seeing the case as one of
‘stolen intelligence material’
• CoA [2016], Lord Dyson MR: Sch 7 power incompatible with Art 10
when used in respect of ‘journalistic information or material’ =
inadequate safeguards against abuse of exercise of this power, therefore
Sch 7 ≠ PBL
See also R (British Sky Broadcasting Ltd) v Commissioner of Police of the
Metropolis
Prevention of Disorder or crime
R (Gallastegui) v Westminster City Council – justified
• Restrictions on setting up tents during protest
• Art 10 + 11 engaged
• PBL: Police Reform and Social Responsibility Act 2011
• Restriction proportionate as rights of protest remained in tact, merely
partially restricted
R (Laporte) v Chief Constable of Gloucestershire – unjustified
• Passengers in coach stopped, searched and redirected to London due to
concerns re: protest at Fairford RAF base
• HoL: reasonable apprehension of imminent breach required before such
action
• Here, no imminent breach = premature and indiscriminate action by
police is disproportionate restriction of C’s Art 10 and Art 11 (freedom of
assembly and association) rights
© Liam Porritt 2020 7
Protection of health or morals
Morals
Wide margin of appreciation, as no uniform European conception of morality
(Handyside v UK)
Müller and Others v Switzerland (1991) – justified
• Graphic sexual-religious images in gallery open to public without warning
as to nature of art in exhibition
• Paintings seized + Müller and other organisers convicted for publishing
obscene material
• Paintings eventually returned to Müller 8 years later (although he could
have applied earlier, but chose not to)
• Swiss state’s response deemed to be proportionate to protect public
morals – i.e protect against repetition of the offence
See protection of rights of others below – these two overlap.
Health
Open Door Counselling and Dublin Well Woman Centre Ltd v Ireland (1992) –
unjustified
• Absolute and unqualified injunction prohibiting dissemination in Ireland
of information regarding advice on and availability of abortion services in
UK = disproportionate interference with applicant clinic’s freedom to
provide information
Protecting the reputation or rights of others
Reputation
Lingens v Austria (1986) – unjustified
• Statements of opinion re: Nazi affiliations of Austrian Chancellor led to
conviction for defamation, as Austrian law required considerable
justification of statements of opinion
• ECtHR: Limits of acceptable criticism are wider for politicians + therefore
conviction for defamation disproportionate
Terry v Persons Unknown [2010] – injunction dismissed
• Injunction re: affair dismissed
• Freedom to live as one chooses is most valuable freedom
• However, so is the freedom to criticise within the limits of the law socially
harmful conduct
© Liam Porritt 2020 8
Times Newspapers v UK [2009] – multiple publication rule justified
• Rule: each publication gives rise to a separate actionable libel ≠ contrary
to Art 10
Rights of others – morality / religion
Prolife Alliance v BBC [2003] – justified
• BBC refused party political broadcast on taste and decency grounds
• HoL: BBC decision consistent with such principles
• NB importance of tone and manner (as well as substance) – here,
graphic video of abortions merited restriction, not message
Otto-Preminger-Institut v Austria (1994) – justified
• Satirical film re: Christianity
• Entry restricted to over 16s
• Seizure + permanent forfeiture ordered for criminal offence of
‘disparaging religious precepts’
• Justified restriction to protect freedom of religion under Art 9
• Context important: 87% Roman Catholic in area of film’s release = subnational margin of appreciation
• NB court weighed pro-debate / artistic value (which here was deemed
minimal) against gratuitous offensiveness in coming to its conclusion =
important to weigh benefits and harm
Wingrove v UK (1997) – justified
• Visions of Ecstacy – female character in sexual act with crucified Christ
• Here, restriction under English law on blasphemy = justified
• Note criticism that this may be overly generous use of margin of
appreciation in cases involving religious sensibilities, where the necessity
of ‘politeness’ in critique runs contrary to Handyside principles
© Liam Porritt 2020 9
Rights of others – racism and terrorism
See Brind (national security above)
M’Bala M’Bala v France [2015] – justified
• French comedian, Dieudonné, convicted for causing public insults
towards Jews
• Cannot rely on Art 10 rights to freedom of expression while undermining
central tenets of ECHR, democracy and non-discrimination
Jersild v Denmark (1995) – unjustified
• Documentary re: right-wing group (Greenjackets)
• Greenjackets make abusive and derogatory remarks re: immigrants and
ethnic groups
• Jersild convicted of aiding and abetting Greenjackets, as Danish law
imposed strict liability even where personally wholly reject views of
those in documentary
• ECtHR:
o Press must impart information and ideas of public interest to
public in order to act as “public watchdog”
o Take a holistic approach to the publication: the form of the
documentary was such that it did not objectively seek to
propagate racist views or ideas
o Instead, it sought to analyse the causes of these views (of great
public concern)
Livingstone v Adjudication Panel for England – unjustified
• Livingstone not acting in official capacity when made ‘intemperate’
remarks to a Jewish journalist, therefore restraint imposed on him =
disproportionate
© Liam Porritt 2020 10
Preventing the disclosure of information received in confidence
• This justification is used:
o Breach of confidence = civil remedy, often to complement Official
Secrets Act 1989 (Spycatcher case)
o Contractual / equitable duty of confidence
o By investigative journalists protecting source of information to
retain integrity
Goodwin v UK – order to disclose source unjustified
• Journalist who had received confidential company information refused to
disclose source = convicted of contempt of court
• Violation of Art 10, as conviction and fine ≠ proportionate
• ECtHR: importance of strong protection for serious journalism: sources
are to disclose information in the public interest and must not be deterred
through lack of protection for journalistic sources
• Order of source disclosure can only be compatible with Art 10 where
justified by an overriding requirement in the public interest
Ditto – Financial Times v UK – order to hand over source = PBL; but, importance
of protection of sources, so ≠ NIADS
Ashworth Security Hospital v MGN Ltd – disclosure order justified
• Medical records of convicted murderer, Ian Brady, supplied to the Mirror
• Breach of confidence and contract by hospital worker = order to disclose
source
• Justified as otherwise = risk of further selling of confidential information
= attack on area of confidentiality that must be protected in ADS.
© Liam Porritt 2020 11
Maintaining the authority and impartiality of the judiciary
• Relevant:
o Judges unable to respond to personal attacks by using media, given
role and duties of discretion
o Art 6(1) ECHR – right to fair trial must be preserved
The Sunday Times v UK (1979-80)
• Article re: Thalidomide drug + legal conflict between manufacturers and
parents of children affected
• UK courts: injunction restricting publication, as was pressuring
manufacturer to forgo legal rights and seek settlement
• Interference with Art 10 rights accorded with legitimate aim
• However, interference not NIADS = amendment to UK law through the
Contempt of Court Act 1981 (see Sunday Times v UK in previous notes)
Clayton v Clayton [2006]
• Children Act 1989 – prohibition on publishing material likely to identify
child involved in proceedings limited to duration of proceedings, as
otherwise breach of Art 10
A v BBC [2014]
• BBC: Art 10 rights compromised by direction requiring anonymity for A,
who was being deported following sentence for sexual offence
• Court order: due to serious risk to A of death or ill-treatment in home
country
• Appeal dismissed due to importance of upholding A’s Art 3 rights
© Liam Porritt 2020 12
Restraints on freedom of expression
• Interference with free speech through prior restraint (e.g. injunction)
requires very high level of justification (as in tort of libel)
• Super-injunction (restraining material + content or order + existence of
order) – see Terry v Persons Unknown above (super-injunction dismissed)
+ Trafigura + PJS v News Group Newspapers Ltd (Art 8 cases)
Types of restraint
1. Injunction
2. Confiscation of property (Müller)
3. Copyright laws (HRH The Prince of Wales v Associated Newspapers Ltd)
4. Decisions to refuse immigration entry (R (Farrakhan) v Secretary of State)
5. Limitations on election expenditure (Bowman v UK)
No need for enactment of legal measure requiring prior notification from media
organisations in advance of their publishing information relating to individual’s
private life (Art 8) (Mosley v UK)

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