Article 10 - European Convention On Human Rights

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Article 10

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Freedom of Expression

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Court's General Approach

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Handyside v UK - issue for Strasbourg was how to protect freedom of expression and balance the legitimate aim. Court said there is no European consensus on morals and that because of that there is a wide margin of appreciation for states to decide their own moral standards. Also said that “necessary in a democratic society” requires the respondent state to show that there is a pressing social need.

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Sunday Times v UK

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Strasbourg ruled that the right in 10(1) is more important than the justifications in 10(2) so the court will try and give priority to the freedom. Therefore injunctions preventing the Times from writing about the Thalidomide disaster and company were a violation of their Article 10 right.

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Steel and others v UK

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Physical protests could come under Article 10 but in most cases no breach due to the 10(2) justification of preventing crime.

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Ozgur Gundem v Turkey

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Strasbourg implied positive obligations under Article 10 to protect the freedom of expression of the premises and the employees of a pro-Kurdish newspaper in Turkey.

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Political expression

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Lingens v Austria - Strasbourg rules (as a matter of law) that the media must have greater freedom to comment on politicians for there to be a democratic society. Applying that, they found a clear breach as he had been convicted for simply expressing his opinion which was unjustifiable. Strasbourg said that when making a “value judgement” you can’t be required to prove them as they are merely opinions.

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Castells v Spain

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He relied on Lingens but he was criticising the state and the court said political freedom must be read even wider in terms of comments about the state as opposed to only individuals politicians. However as he claimed he was accusing them as a matter of fact and claimed he had evidence to back it up he should have been allowed to produce this evidence when challenged in the domestic courts but he wasn't allowed so there was a breach.

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Incal v Turkey

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People trying to incite violence can't be protected by Article 10 but Incal wasn't trying to incite violence so there was a breach.

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Janowski v Poland

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No breach as it was public officials (municipal guards) who were the subjects of his expression and Strasbourg agreed with Poland that these officials should not expect to be subject to the same criticism as politicians and so no breach when he was fined for insulting a public official.

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Thorgeirson v Iceland

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Strasbourg accepted that political expression should extend to include discussion of matters of public interest e.g. the way the police use their powers.

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Jersild v Denmark

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Expression of racist views falls outside the protection of Article 10, but J had not been expressing racist views or endorsing them in any way, he'd merely been carrying out a journalistic role so there was a clear breach of his Article 10 right when he was convicted of expressing racist views and aiding and abetting expressing racist views.

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Lehideux & Isorni v France

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Strasbourg extended on the types of expression which fall outside of the protection of Article 10 - supporting Nazi ideology, expression of anti-Semitic views and the denial of historic facts. But the adverts paid for by L & I contained none of these so they should have been protected by Article 10 and there was a breach.

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Rekvenyi v Hungary

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In deciding what’s acceptable in limiting freedom of expression, Strasbourg will take into account the history of the specific MS, so here rules limiting the ability of public officials to get into politics was justified due to Hungary's constitutional history of being owned entirely by one party.

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Artistic expression

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Muller v Switzerland - Strasbourg took a wide view of expression so it would extend into the artistic sphere, but it is qualified and can be justified by the state under 10(2). In this case the Swiss government tried to use the protection of morals as the Swiss moral standards effected in the operation of their courts/criminal justice system were violated by these paintings.Strasbourg said there was still no European consensus on morality and so states are still to be accorded as wide appreciation with morals – they can set their own standards. So the interference was justified under 10(2) protection of morals and therefore no breach.

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Otto-Preminger Institut v Austria

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Films are included in artistic expression, so then the court looked to the 10(2) justifications and the reason it had been seized was prevention of blasphemy and protection of religious belief which don’t come under 10(2) so Austria tried to justify it under the protection of rights of others, saying it should be interpreted to include the religious beliefs/feelings of others and Strasbourg accepted this and said states should be given a wide margin of appreciation as the protection of religious beliefs is equally as diverse between MSs as morals. So no breach due to what was acceptable (or not) religiously in the area.

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Commercial expression

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Markt Intern Verlag v Germany - injunction preventing them from printing critical articles about a British company was said to infringe their right to commercial expression but the court sided with Germany who had imposed the injunctions as they were given a wide margin of appreciation as these were really technical issues facing different companies.

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Hertel v Switzerland

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Injunctions violated his freedom of expression but it was distinguished from Markt Intern as his publications raised matters of public interest and therefore the margin of appreciation given to the state should be reduced. So there was a breach.

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Freedom to hold opinions

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Vogt v Germany - the dismissal of a state employee because of her political opinions and activities amount to an interference with her Article 10 right and it was not “necessary in a democratic society” therefore there was a breach.

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Licensing of broadcasting

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Groppera Radio AG v Switzerland - licensing rules must meet the requirements of 10(2)– necessary in a democratic society, in accordance with the law and it had the legitimate aim of protecting the rights of others and preventing disorder so it was justified as they were merely trying to stop the pirate radio station from circumventing Swiss legislation.

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Informationsverein Lentia v Austria

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Austrian government tried to raise the justification of protection of rights of others to protect the culture of Austria to justify a monopoly on TV and radio. Strasbourg said these restrictions were not necessary in a democratic society and this ruling essentially prevents MSs from having a state monopoly over TV and radio stations as due to the necessity for diversity and pluralism in the media which is at the heart of the freedom of expression. Democratic societies need this freedom of expression especially in matters of politics and if you have a diverse mass media you get more different views/information.

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Legitimate aims of interferences with freedom of expression

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- National security

- Territorial integrity

- Protecting public safety

- Prevention of disorder or crime

- Protection of health and 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