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34 Cards in this Set
- Front
- Back
- 3rd side (hint)
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1st Amendment - Freedom of Speech |
“A principle under which speech is entitled to special protection from regulation or suppression” - Schauer, 1982 |
USA only |
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Article 10 - European Convention of Human Rights |
Freedom of Expression - Includes the freedom to hold and share opinions & information without interference from public authorities - Subject to formalities, conditions, restrictions & penalties: In terms of law, in the interests of national safety, public safety, reputation & rights of others (including the disclosure of information received in confidence), and maintaining the authority & impartiality of the judiciary |
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Freedom of Expression, covered by: |
- Council of Europe: Article 10 ECHR - UN: Article 19 ICCPR (International Covenant on Civil and Political Rights) - USA: 1st Amendment - USA: ACHR (American Constitution of Human Rights) |
4: 2 are USA |
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Handyside v UK (1976) |
The right to “offend, shock or disturb the state or any sector of the population” within freedom of expression |
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Autronic AG v Switzerland (1990) |
Article 10 applies to all legal and natural persons. The content, and means of transmission or reception are also protected. |
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Article 8 - European Convention of Human Rights |
Privacy - The right to respect for private and family life (including home and correspondence) - No interference from public authority - Exceptions: in accordance with the law, national security, public safety, economic safety of the country, the rights of others |
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Examples of traditional media in the UK |
- Print press - Broadcast media - Examples: newspapers, TV news, radio, etc. |
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“Public Watchdog” cases |
- Observer & Guardian v UK (1992): gagging newspapers from talking about a banned novel was a breach of article 10, as they are the “public(s) watchdog” - A-G v Guardian Newspapers Ltd (No. 2) (1990): the media is the public’s “eyes and ears” by investigating and reporting abuses of power - Bladet Tromso & Stensaas v Norway (2000): duty to impart information and ideas on all matters of public interest |
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Regulators |
- OFCOM (Broadcast, used to be OFTEL) - Self-regulation (Print Press: Press Complaints Commission, Independent Press Standards Organisation, Independent Monitor for the Press - Information Commissioners Office (ICO) - Advertising Standards Agency (ASA) - Internet Watch Foundation |
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Sanctions: The Broadcasting Code |
Notice of breach Direction not to repeat a programme Issue a correction Impose a fine Revoke the licence |
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Sanctions: The Press |
Order publication of a correction Financial penalties for serious and systemic breaches |
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The Leveson Inquiry |
The investigation into the culture, practices and ethics of the British press following the 2009 phone hacking scandal |
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Packingham v North Carolina (2017) |
State enforced a law that meant sex offenders couldn’t use social media that allowed underage users. Ruled it was against the 1st amendment, and was abolished |
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“No one really cares who runs the internet as long as it works” |
Kevin Rogers |
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Cyber-Libertarians |
- The Internet is free - No laws should be in place - Unregulated space: the community rules - Cyberspace has its own sovereignty - Live and let live |
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The Law of the Horse |
“... is doomed to be shallow and miss unifying principles” - Judge Frank H. Easterbrook, US Court of Appeal |
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Modalities of Regulation (4) |
1) The Market 2) The Law 3) Architecture 4) Social norms/rules |
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Libertarianism |
- Self-regulation, not state - Formed the marketplace of ideas - “The true & sound will survive... Government should keep out of the battle... through the self-righting process, [the true & sound] will ultimately survive” |
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Marketplace of Ideas |
Freedom of expression in the free market analogy: unrestricted competition, regulated by the market itself |
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Abrams v US (1919) |
“The best test of truth is the power of the thought to get itself accepted in the competition of the market” - Similar case: Gitlow v New York (1925) |
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Liberals |
- Democrats (Obama) in USA - Central in Europe - Prefer state protection and rule |
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Jameel v Wall Street Journal Europe Sprl (2007) |
A balance between a right of a company to protect its reputation and the right of the press and public to be critical of it - (the argument from democratic self-governance) |
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Where is the European Convention of Human Rights?
Who is governed by it? |
- Strasbourg - Council of Europe (47 countries): member states in the council aren’t necessarily members of the EU |
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Lingens v Austria (1986) |
Value judgements in the public are NOT defamation, they are a persons opinion and therefore freedom of expression. - Similar case: R (ProLife Alliance) v BBC (2004) |
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Social responsibility theory |
Freedom of the press helps to educate the public to form their own opinions on political leaders. |
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Steel & Others v UK (1998) |
FoE included the freedom to peacefully protest. |
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Vejdeland & Others v Sweden (2012) |
Media freedoms allows: - Wide discretion in reporting & presentation - Exaggeration & provocation - Use of strong terminology - Protection is sources and statements made by 3rd parties |
4 things media are allowed to do under freedom of expression |
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a) ICCPR meaning b) Article 19 |
a) International Covenant on Civil and Political Rights b) the absolute right to have, not have, or change an opinion |
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Non-for-profit organisations covered by article 10 |
Open Door Counselling and Dublin Well Women v Ireland (1992) |
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Public Institutions covered by Article 10 |
London Regional Transport v Mayor of London (2001) |
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Sunday Times v UK (1979) |
1) Is the restriction of free speech “prescribed by law”? 2) Does it have a legitimate aim? 3) Is it necessary in a democratic society? (Proportionate to legitimate aim) 4) Is it within the State’s “margin of appreciation”? (Pressing national needs of a country) |
4 considerations whether there was an infringement of Article 10 |
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Sunday Times v UK (1979) |
1) Is the restriction of free speech “prescribed by law”? 2) Does it have a legitimate aim? 3) Is it necessary in a democratic society? (Proportionate to legitimate aim) 4) Is it within the State’s “margin of appreciation”? (Pressing national needs of a country) |
4 considerations whether there was an infringement of Article 10 |
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Commercial speech & advertising by professionals |
- Barthold v Germany (1985) - Cascado Coca v Spain (1994) |
EU cases |
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Sesta |
US regulation to stop sexual exploitation and trafficking online |
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