Article 10- Freedom Of Expression

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What are the 4 different justifications underlying 'expression?'

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1) Argument from truth- creating a 'free market' of ideas- the truth should prevail.
-This concerns free discussion of opinions and historical/scientific fact.

2)Argument from self-development/fulfilment- freedom of expression and experience in art/literature etc for the development of the person.
-This argument has been attacked on grounds of hard-core pornography- damaging and degrading- does not create fulfilment/development.

3)Argument from moral autonomy- individuals should choose for themselves what expression to engage in- the state should not impose moral views of some onto others.

4) Argument from democracy- citizens must be well informed to partake in the democracy process- this allows political expression/public interest speech.
-The media plays a vital role in conveying the public interest.

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What is political speech?

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-includes speech of public interest, and is at the top of the hierarchy so gets the most protection. The ECtHR is more likely to find that there has been a breach of article 10 in the restriction of political speech.

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What are examples of political speech?

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Jersild v Denmark- There is likely to be a breach of article 10 if the interference concerns political speech.

Thorgeirson v Iceland- allegations of police brutality- a breach of article 10 was found.

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What is artistic expression?

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It is second in the hierarchy, and can include sexually explicit expression.

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What are examples of artistic expression?

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-Otto-Preminger Institute v Austria- the court found that the Austrian authorities had acted proportionately, and therefore there was no breach of article 10.

-Muller v Switzerland- The court granted the state a wide margin of appreciation, and subsequently no breach of article 10 was found.

-Wingrove v Switzerland- the court held that the state was in a better position to judge on the protection of morals, so a wide margin of appreciation was given, and no breach of article 10 was found.

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What happened in VBK v Austria?

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The Austrian courts forbade the exhibition of a painting by Otto-Muhl, which depicted various public figures (e.g. MOther Theresa, an Austrian Cardinal and several political figures) in graphic sexual positions.
-The painting was damaged by a visitor who covered it in red paint (including Mr Meischberger's face) Mr Meischbereger sought an injunction against the exhibition of the painting.
-The ECtHR held that the aim was purely the protection of an individual's rights rather than public morals as the government claimed.
-The caricature-like nature of the painting suggested that it was a from of artistic expression and was not meant to reflect reality- artistic expression and social commentary.
-The fact that the painting had been damaged diminished Mr Meicshberger's claim, and therefore a breach of article 10 was found.

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What is expression purely for entertainment?

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Expression that contains no artistic elements, and is therefore afforded the weakest protection by the ECtHR.

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What is an example of expression purely for entertainment?

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Scherer v Switzerland

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What happened in Scherer v Switzerland?

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-The case concerned hardcore pornography with a public element, as it was relatively easy for an adult to walk in.
-Based on the principle of moral autonomy, a breach of article 10 could be found- adults should have the freedom to see/hear what they want.
-Safeguards against children were present, as the video was not on sale.
-Therefore, the state's conviction was disproportionate, and the ECtHR found a breach of Article 10.

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What is the point of the margin of appreciation?

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-The margin of appreciation is relevant to steps 3 and 4 of the test (the requirements of necessity and proportionality)
-It allows for a degree of deference to democratically elected decision-makers (state judges.)
-Allows for a limited extent of cultural diversity between European states.
-It gives discretion regarding the enforcement of state obligations under the convention.

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What factors influence the margin of appreciation given?

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-Whether there is a European consensus on the necessity of restricting the expression in question.
-The type of speech/ expression in question (generally a greater margin of appreciation is afforded regarding artistic as opposed to political speech)
-The 'legitimate aim' relied upon by the state- some aims are more objective than others
e.g. in Sunday Times v UK, protecting the authority of the judiciary was a more objective aim than protecting morals, therefore a narrower margin of appreciation was given regarding the former.

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What does subsidiarity mean, and in which case can its application be seen?

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-Letting communities decide democratically at local level what is appropriate for its members.

Wingrove v UK-The prevention of Wingove's work from being distributed fell within the discretionary area of each national community, and therefore there was no violation calling for European intervention.

In Otto-Preminger, it was stated that 'The court does not consider...that the Austrian authorities can be regarded as having overstepped their margin of appreciation.'

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What is universality? and in which cases can its application be seen?

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-The same standard of European protection for everyone, regardless of national community.

Goodwin v UK- The ECtHR held that the ordering of Goodwin to disclose the identity of his source, violated hi right to freedom of expression.

Jersild v Denmark- Strasbourg found that the repressive measures violated the journalist's right to freedom of expression.

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What remedies are available?

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The purpose of the reparation is to put the applicant in the position he/she would have been in had the violation not taken place- compensation will usually be awarded.