Freedom of Expression on Trial:
Caselaw under European Convention on human rights
Institute of Commonwealth Studies
University of London
"Freedom of expression constitutes one of the essential foundations of a [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive, but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society."
- Handyside v. UK(1)
The right to freedom of expression is probably the most universally accepted human right.(2) Certainly, it has been the subject of considerable caselaw under the European Convention of Human Rights.(3) Beginning with the Handyside case, the European Court has repeatedly underscored the fundamental importance of freedom of expression as a central pillar of democracy.(4)
The opening sentence of the Handyside passage, quoted above, indicates the two underlying reasons why freedom of expression is considered to be essential.(5) Firstly, it is central to the functioning of a democratic society - political representatives can only understand and represent the views of their constituents through an open, two-way process of airing views, opinions and facts. Secondly, a person can only achieve self-fulfilment and their full human potential through being able to freely communicate their feelings, opinions and ideas.(6)
Through its casework, the European Court of Human Rights has established the range and means of free expression protected under the European Convention - including political, artistic and commercial expression through the written and spoken word, television and radio, film and art.
The Court has strongly established the importance of the media's role in being able to report freely on matters of public interest. As affirmed in the Handyside passage, freedom of expression extends to unfavourable information or ideas, as well as those that are popular or inoffensive.(7)
However, with the phrase "subject to paragraph 2 of Article 10", the Handyside quotation also indicates that the right is not absolute. Free expression often impacts on the rights and interests of others - for example, it may damage another person's reputation, prejudice a fair trial or incite racial hatred. Therefore, the Court has sought to balance the right to freedom of expression with the state's legitimate need to restrict it in certain circumstances. In some instances, notably on issues of morality, it has granted states a large measure of discretion in determining that need.
This essay will outline the scope and limitations of the right to freedom of expression as developed through the significant caselaw of the European Commission and Court of Human Rights, in the areas of political and artistic expression.
The Scope of Article 10
The European Court has done much to interpret freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights(8). Article 10(1) of the Convention states that "everyone has the right to freedom of expression". This includes the right to "receive and impart information without interference by public authority and regardless of frontiers".(9)
However, in order for states to prevent expression which may be harmful or infringe other's rights, Article 10(2) allows specific limitations on the right to freedom of expression which are "prescribed by law" and "necessary in a democratic society"(10). These include such restrictions or penalties as may be needed to safeguard national security, protect public health and morals, prevent crime, or maintain the authority and independence of the judiciary. Extreme examples of harmful expression may include such things as violent or child pornography and incitement to racial violence.
In comparison with other Convention provisions with a similar structure, the European Commission and Court has been less concerned with the definition of freedom of expression, but rather with states' justification for interference.(11) States must show that any restrictions were lawful, that there was a pressing social need for the interference, and that they were proportional to the interest served.
The Court's main concern has been to strike a balance between protecting freedom of expression and protecting the rights and interests of others. It has allowed states a margin of appreciation on the basis that they are in a better position to determine whether a restriction is necessary in the light of local circumstances, especially with regard to the 'protection of morals'(12). This need may differ from state to state - even between democratic states - and may be constantly changing. However, the Court has also made it clear that states do not have free reign - any restriction must be interpreted narrowly and the Court maintains a supervisory role to monitor and scrutinise the restrictions imposed by states.(13)
The Development of Freedom of Expression Caselaw
Several distinct categories of expression have emerged through the caselaw under the European Convention on Human Rights. In line with the concept that freedom of expression is essential in a democratic society, the Court has shown greater preference for political expression, followed by artistic expression, and lastly commercial expression.(14) This essay shall focus mainly on political and artistic expression. Commercial expression shall only be mentioned in passing, with reference to Goodwin v. United Kingdom (see note 25).
A key ruling on political expression is found in Lingens v. Austria (1986)(15), in which the Court imported a concept from the US Supreme Court that politicians must expect and tolerate greater public scrutiny and criticism than average citizens. It stressed the media's crucial role in reporting matters of public interest. Freedom of the press provided the public with "one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders"(16). The Court stated:
"More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual."(17)
In both Lingens and a later case, Oberschlick v. Austria (1991)(18), the Court made it clear that freedom of expression was not limited to verifiable, factual data.(19) In other words, it was not 'necessary in a democratic society' for journalists to prove the truth of their opinions and value judgements about political figures, as these were impossible to prove anyway.(20)
Contempt of court
In several cases, the Court has balanced the right to freedom of expression with the administration of justice, and weighed in favour of the former. For example, in Sunday Times v. UK (1979)(21), the Court stressed the media's role in reporting matters which the public has a right to know, saying:
"The thalidomide disaster was a matter of undisputed public concern… Article 10 guarantees not only the freedom of the press to inform the public, but also the right of the public to be properly informed… The question of where responsibility for a tragedy of this kind actually lies is also a matter of public interest… [T]he facts of the case…did not cease to be a matter of public interest merely because they formed the background to pending litigation. By bringing to light certain facts, the [Sunday Times] article might have served as a brake on speculative and unenlightened discussion."(22)
On the issue of the state's margin of appreciation, the Court recalled its Handyside decision, which allowed variations between states on the need to restrict free expression for the 'protection of morals'. It said that states are generally in a better position to decide on such matters. However:
"Precisely the same cannot be said of the far more objective notion of the 'authority' of the judiciary. The domestic law and practice of the Contracting States reveal a fairly substantial measure of common ground in this area".(23)
Therefore, the Court ruled that, even though the case involved sensitive matters before a court, the ban on publishing the articles did not correspond to a social need so pressing that it outweighed the public interest in freedom of expression.
The Sunday Times case was also significant for its consideration of the notion that a restriction was "prescribed by law". In the UK, contempt of court is a common law concept which aims to protect the administration of justice. The Sunday Times argued that the law of contempt was inherently uncertain. However, the Court determined that the crucial factor was not whether the law was written or unwritten but whether it was clear enough for citizens to know with reasonable certainty the likely consequences of a particular action. It found that the British law on contempt of court met that standard. However, 'the Sunday Times test' does not only ask whether a law exists in the state concerned, but whether it complies with the requirements of Article 10(2).(24)
In Goodwin v. UK (1996)(25) - another contempt of court case - the Court endorsed the freedom not to speak, i.e. the fundamental right of journalists not to disclose the identity of confidential sources of information, stating:
"Protection of journalistic sources is one of the basic conditions for press freedom… Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest."(26)
Both the Sunday Times and Goodwin cases concerned the issue of 'prior restraint' preventing the media from publishing sensitive information. However, it was not until the Spycatcher cases(27) -involving suppression of media reports on Peter Wright's book about the secret service - that the European Court directly addressed the threat to press freedom posed by prior restraints(28):
"The dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest."(29)
In the first Spycatcher case, involving the Observer and Guardian newspapers, the Court made a controversial distinction between two time periods - before and after the book's publication in the US.(30) For the first period, it ruled by a narrow margin (14 votes to 10) that the injunctions against the newspapers were justified because of a risk that the material was prejudicial to the British secret service. (31) For the second period, however, the Court ruled unanimously that Article 10 had been violated since the government's aim of protecting confidentiality was no longer relevant as the information had entered the public domain:
"Continuation of the restrictions after July 1987 prevented the newspapers from exercising their right and duty to purvey information, already available, on a matter of legitimate public concern."(32)
The Court's conclusion that the UK authorities were entitled to believe that, prior to US publication, the injunctions were 'necessary in a democratic society', was surprising. Earlier in the same judgement, it had reiterated the principle first articulated in the Sunday Times case that freedom of expression is not to be balanced against other interests, but rather is "subject to a number of exceptions which…must be narrowly interpreted"(33).
Eleven judges disagreed with the Court's majority finding that the injunctions were acceptable during the first period.(34) Judge De Meyer, joined by four others, stated that prior restraints, whether temporary or permanent, should be upheld only when a state can demonstrate concerns so serious that they 'threaten the life of the nation', and even then, only to 'the extent strictly required'.(35)
Another dissenting judge, Judge Martens, said that prior restraint was undoubtedly "after censorship, the most serious form of interference" with freedom of expression,(36) and the 'age of information' meant that "information and ideas cannot be stopped at frontiers any longer".(37) His comment highlights the implications for freedom of expression of advances in information technology. A state's decision to ban information or ideas is likely to become increasingly ineffective, especially with the rise of the Internet and satellite communication for news reporting.
The Spycatcher case was significant in establishing that neither maintaining the authority of the judiciary, nor national security could justify measures to suppress material in the book once it was published in the US.(38) It was the first time that the Court had rejected a government's claim that an interference in a fundamental freedom was necessary to protect national security.(39) The episode also proved that the best way to promote interest in a book is to ban it.(40)
Obscene and/or blasphemous publications
The Handyside case (1976)(41) is significant for its assertion of the importance of free expression, as outlined at the beginning of this essay, and also for its consideration of the concept that state interference must be 'necessary in a democratic society'. The Court ruled that the British Government's action in banning The Little Red Schoolbook and charging its publisher with obscenity was not out of proportion in a democratic society. Despite extending free expression to information and ideas that "offend, shock or disturb", the Court ruled in favour of the state, allowing it a margin of appreciation to determine the measures needed to protect morals. The fact that the book had been allowed in a majority of contracting states did not preclude it being necessary to restrain its publication in a minority of states if local circumstances required. The Court reasoned that it was not possible to find "a uniform European conception of morals" in the various laws of contracting states, and that "the requirements of morals varies from time to time and from place to place"(42). Therefore:
"By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the 'necessity' of a restriction or penalty intended to meet them… It is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of 'necessity'..."(43)
However, the Court made clear that Article 10(2) did not give states unlimited power of appreciation; the Court would make the final decision on whether a restriction or penalty was permissible:
"The domestic margin of appreciation thus goes hand in hand with a European supervision…[which] concerns both the aim of the measure challenged and its necessity."(44)
Similarly, in Müller v. Switzerland (1988)(45) - the first case in which the European Court extended the right to freedom of expression to artistic expression - the Court determined that it may be necessary for a state to restrict free expression in order to protect vulnerable citizens, especially children. In the absence of a uniform approach to morality among member states, the issue was not whether the Court agreed with the conviction, but whether the action was reasonable. The Court ruled that the state was entitled to regard the paintings as morally pernicious and thus had not violated Article 10.
The Court seemed to undermine this reasoning in Otto-Preminger Institute v. Austria (1994)(46), in which it also found in favour of the state. However, unlike in the Müller case, the Institute had restricted the showing of a 'blasphemous' film to paying adults above 17 years of age. There was little risk that children would chance to see the film as it was to be screened late at night. Therefore, the Institute had taken precautions which seemingly precluded the need for the state to interfere 'for the protection of morals'. Despite stating that people with religious beliefs have to tolerate criticism and denial by others, the Court gave the state a very wide of margin of appreciation, accepting that its action was necessary in order to keep the peace. In contrast, the Commission had said that "very stringent reasons" were needed to justify the seizure of a film - "which excludes any chance to discuss its message" - and that these reasons were lacking.(47)
Similarly, the Court deferred to the state's margin of appreciation in Wingrove v. UK (1997)(48), finding that the state's refusal to provide an official classification for an allegedly blasphemous film was not a violation of Article 10.
The delicate balance between freedom of the press and its impact on the rights of others was weighed by the Court in Jersild v. Denmark (1994)(49). The Court acknowledged that the racist remarks for which the Greenjackets were convicted "were more than insulting to members of the targeted groups and did not enjoy the protection of Article 10"(50), and that the Danish Government had acted to protect its minorities against racial discrimination. It also noted the potential impact of the medium, since "it is commonly acknowledged that the audio-visual media have often a much more immediate and powerful effect than the print media". However, the Court found that the penalties imposed on the media in this case were not necessary in a democratic society for the protection of the rights of others:
"The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so."(51)
In the Jersild case, the Court took into account the intended audience of the message in determining whether state interference is justified.(52) Unlike the Handyside case, in which the messages of The Little Red Schoolbook were aimed primarily at children, the Greenjackets item was part of a serious news programme directed at a well-informed audience, who clearly required less protection. With the exception of the Otto-Preminger case, the Court has shown unwillingness to accept interferences with the communication of ideas and information to consenting adult consumers.
In keeping with its affirmation that freedom of expression is "one of the essential foundations of a [democratic] society", the Court has clearly shown a preference for political expression. This can be seen in its rulings in favour of political speech, largely through the media, when it has been balanced against other compelling interests, such as the administration of justice, confidence in national security services, and the protection of the rights or reputation of others. In matters involving artistic expression - especially that which has raised suggestions of obscenity or blasphemy - the Court has allowed states a greater margin of appreciation to determine the restrictions necessary for the protection of morals.
With the possible exception of the Otto-Preminger case, the Court's rulings have shown a solid and logical development of the interpretation of the right to freedom of expression. This is important because of the Court's high standing within the member states of the Council of Europe and throughout the world. The Court's judgements on questions of freedom of expression have often been cited by national courts outside of Europe, particularly throughout the Commonwealth, as well as by other regional and international tribunals.(53) Great challenges face the Court in the years ahead as it will increasingly have to grapple with cases of a vastly different kind from many newly-emerging states of eastern Europe - states who do not share the same traditions of political democracy and respect for human rights as those of most existing members.(54)
Article 19, Spycatcher: The Legal and Broader Significance of the European Court's Judgement Censorship News, No.8, December 1991
Article 19 and Interights, Blasphemy and Film Censorship: Submission to the European Court of Human Rights in Nigel Wingrove v. The United Kingdom, London, December 1995
Article 19 and Interights, Blasphemy, Prior Restraint and Freedom of Expression. Third party intervention to the European Court of Human Rights in Otto-Preminger Institute v. Austria, London, October 1993
Article 19 and Interights, Protection of Journalists' Sources: Comparative Law and Jurisprudence. Written comments submitted to the European Court of Human Rights in the Case of William Goodwin v. The United Kingdom, London, April 1995
Barendt, Eric, Freedom of Speech Oxford: Clarendon Press, 1992
Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe; signed 4 November 1950, entered into force 3 September 1953; 31 States Parties, in Gandhi, P.R. (ed.), International Human Rights Documents, London: Blackstone Press Ltd, 1995
European Commission of Human Rights, URL: <http://188.8.131.52/eng/MEMBER.HTM>
Farran, Susan, The UK Before the European Court of Human Rights: case law and commentary London: Blackstone Press Ltd, 1996
Harris, D.J., O'Boyle, M., and Warbrick, C., The European Convention on Human Rights London: Butterworths, 1995
Jacobs, F., and White, R., The European Convention on Human Rights, 2nd Edition Oxford: Clarendon Press, 1996
Janis, M., Kay, R., and Bradley, A., European Human Rights Law Oxford: Clarendon Press, 1995
Robertson, A.H., and Merrills, J.G., Human Rights in the World, 4th EditionManchester University Press, 1996
Steiner, Henry, and Alston, Philip, International Human Rights Law in Context: Law, Politics, Morals Oxford: Clarendon Press, 1996
(from European Human Rights Record (EHRR))
Goodwinv. United Kingdom, Judgement of 27 March 1996, Series A, No.17488/90; 22 EHHR 123 (1996)
Handyside v. United Kingdom, Judgement of 7 December 1976, Series A, No.24; 1 EHRR 737 (1979-80)
Jersild v. Denmark, Judgement of 23 September 1994, Series A, No.298; 19 EHRR 1 (1995)
Lingens v. Austria, Judgement of 8 July 1986, Series A, No.103; 8 EHHR 103 (1986)
Müller v. Switzerland, Judgement of 24 May 1988, Series A, No.133; 13 EHRR 212 (1991)
Observer and Guardian v. UK, Judgement of 26 November 1991, Series A, No.216; 14 EHHR 153 (1992)
Otto-Preminger Institute v. Austria, Judgement of 20 Sept. 1994, Series A, No.295-A; 19 EHRR 34 (1995)
Sunday Times v. United Kingdom, Judgement of 26 April 1979, Series A, No.30; 2 EHHR 245 (1979-80) Sunday Times v. UK (No.2), Judgement of 26 November 1991, Series A, No.217; 14 EHHR 229 (1992)
1. Handyside v. United Kingdom, European Court of Human Rights, Judgement of 7 December 1976, Series A, No.24; 1 European Human Rights Record (EHRR) 737 (1979-80). For details of the case, see note 41 and text.
2. Janis, M., Kay, R., and Bradley, A., European Human Rights Law, Oxford: Clarendon Press, 1995, p.157.
3. Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe; signed 4 November 1950, entered into force 3 September 1953; plus Optional Protocols 1-11.
4. The European Court of Human Rights, in Strasbourg, was set up under article 19 of the European Convention and was constituted in 1958. It comprises one judge from each member state of the Council of Europe (40 in 1998). Judges serve in their personal capacity for nine-year renewable terms. The Court is complemented by the European Commission on Human Rights which meets usually for periodic two-week sessions to screen, review and advise the Court on individual complaints against states for alleged human rights violations. The Commission has one member from each High Contracting Party to the Convention (35 in 1998), who are elected for six-year renewable terms by the Committee of Ministers of the Council of Europe but who act in an individual capacity. This structure will change radically after November 1998 with the entry of Protocol No.11, which will merge the Commission and Court into a single, permanent court. The authority of the Commission and Court to receive individual applications is presently provided under Article 25 (Article 34 under Protocol 11). Most Council of Europe member states accept the Convention and the jurisdiction of the Court.
5. Harris, D.J., O'Boyle, M., and Warbrick, C., The European Convention on Human Rights, London: Butterworths, 1995, p.373.
6. Janis, Kay and Bradley, supra note 2, p.158.
7. It also includes the freedom not to speak; and the right to seek information which is available, but does not include the right of access to information (e.g. restricted information). Similarly, the right to impart information does not imply a right of access to the means of imparting information, such as newspaper space or television air time (Harris, O'Boyle and Warbrick, supra note 5, p.380).
8. Article 10 provides:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
"2. The exercises of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
9. Ibid, Article 10 (1).
10. Ibid, Article 10(2).
11. Harris, O'Boyle, and Warbrick, supra note 5, p.377.
12. From Handyside v. UK, see note 41 and accompanying text.
14. Harris, O'Boyle, and Warbrick, supra note 5, p.414. See also Barendt, Eric, Freedom of Speech, Oxford: Clarendon 1992, p.150.
15. Lingens v. Austria, Judgement of 8 July 1986, Series A, No.103; 8 EHHR 103 (1986). Peter Lingens, a magazine publisher in Vienna, published two articles critical of the Austrian Chancellor, Bruno Kreisky, and accusing him of protecting and assisting former members of the Nazi SS. The Chancellor brought private prosecutions for criminal defamation. Lingens was convicted and fined, and his magazine confiscated. He complained to the Commission that his rights under Article 10 had been violated. The Court agreed.
16. 8 EHHR 103, p.419.
18. Oberschlick v. Austria, Judgement of 23 May 1991, Series A, No.204. This case concerned the publication in a periodical of a criminal summons laid against the Secretary-General of the Austrian Liberal Party in respect of remarks he had made during a general election campaign. The publication led to the conviction of the applicant for defamation. The Court upheld his complaint of a violation of Article 10. (Jacobs and White, p.228-229.)
19. Harris, O'Boyle and Warbrick, supra note 5, p.381.
20. Jacobs and White, The European Convention on Human Rights, Oxford: Clarendon Press, 1996, p.227.
21. Sunday Times v. United Kingdom, Judgement of 26 April 1979, Series A, No.30; 2 EHHR 245 (1979-80).
In this case, the Court found that an injunction preventing the Sunday Times newspaper from publishing an article about 'thalidomide children" (children who were born deformed as a result of their mothers having taken thalidomide as a tranquilliser during pregnancy) was a violation of Article 10. The injunction had been made on the grounds that the article might prejudice court proceedings then pending against Distillers, the company which had manufactured the drug. However, the court case had been in a "legal cocoon" for several years, and it was unclear that the parents' action was ever going to come to trial.
22. Ibid, p. 277-282.
23. Sunday Times v. United Kingdom, supra note 21, p.281.
24. Jacobs and White, supra note 20, p.225.
25. Goodwin v. United Kingdom, Judgement of 27 March 1996, Series A, No.17488/90; 22 EHHR 123 (1996). The Court decided that Goodwin, a journalist, had the right not to disclose the identity of a source who had given him confidential information about a company that, if published, might have caused the company financial harm and job losses. The High Court had ordered Goodwin and his publishers to disclose the source and held them in contempt when they refused. In considering the case, the European Court considered whether the disclosure order was proportional to the aim of protecting the company's interests. It determined that the balance between free speech and the rights of others should weigh in favour of the public interest, not commercial interests.
26. Ibid, p.143.
27. Observer and Guardian v. UK, Judgement of 26 November 1991, Series A, No.216; 14 EHHR 153 (1992); and Sunday Times v. UK (No.2), Judgement of 26 November 1991, Series A, No.217; 14 EHHR 229 (1992). The newspapers concerned had complained of a violation of Article 10 arising from an action by the Attorney-General in bringing breach of confidence actions and seeking injunctions restraining publication of extracts of Peter Wright's book, Spycatcher, which detailed his experiences in the British secret service. In 1985, the Observer and the Guardian had printed short articles on legal proceedings in Australia to prevent its publication there, and reporting some of the book's contents. The UK Government lost its case in Australia that the book breached Peter Wright's agreement to maintain confidentiality about his employment in the secret service. In April 1987, the Independent newspaper printed a lengthy summary of the book's allegations and the Court of Appeal ruled that the injunctions were binding on all British media - any publication or broadcast of Spycatcher material would constitute contempt of court. The Sunday Times began a serialisation of the book to coincide with its publication in the US in July 1986, and was charged with contempt of court. Despite the book's unimpeded importation into the UK, the injunctions were maintained until October 1988.
28. Article 19, Spycatcher: The Legal and Broader Significance of the European Court's Judgement, Censorship News, No.8, December 1991, p.11.
29. Observer and Guardian
UK, supra note 27, p.191.
30. Ibid. The book was published in the US in July 1987, but injunctions preventing the Observer and Guardian from reporting on the book were imposed from July 1986, after the Australian court case had commenced.
31. Jacobs and White, supra note 20, p.229. The Court's ruling contrasted with the Commission's finding (by six votes to five) that the injunctions during the first period also violated Article 10.
32. Observer and Guardian v. UK, supra note 27, p.196.
33. Observer and Guardian v. UK, para.59(a); cited in Article 19, Spycatcher, supra note 28, p.7.
34. Observer and Guardian v. UK, p.37-62. Eight separate dissenting views were published. Significant comments included that the newspapers had a legitimate right to report objectively on the court case in Australia; the injunctions were not aimed to protect national security but to prevent government embarrassment; the public had a right to know about the functioning of a government organ; the newspapers were not responsible for any breach of confidence and therefore the government's target, if any, should have been Peter Wright; and the impossibility of preventing the book's US publication meant that the injunction should never have been granted.
35. Ibid, p.43. The dissenting judges quoted from Article 15 of the European Convention which allows states to derogate from most of their obligations under the Convention "in times of war or other public emergency threatening the life of the nation." (with the exception of Articles 2, 3, 4(1), and 7).
36. Ibid, p.49.
37. Ibid, p.50.
38. Robertson and Merrills, Human Rights in the World, 4th Edition, Manchester University Press, 1996, p.145
39. Article 19, Spycatcher, supra note 28, p.12.
40. Ibid. Article 19 comments that book apparently did not contain the great exposes that readers had expected.
41. Handyside v. United Kingdom, Judgement of 7 December 1976, Series A, No.24; 1 EHHR 737 (1979-80). Richard Handyside, the English publisher of The Little Red Schoolbook, was convicted on obscenity charges. The English courts found that the book was likely to "deprave and corrupt" a significant proportion of the children who were likely to read it. However, the book had been published in most member states, and was freely available in other parts of the UK. The European Court ruled that there had been no violation of Article 10 on grounds that the state had a legitimate aim, in light of local circumstances, to protect morals. It attached particular importance to the "intended readership of the Schoolbook… children and adolescents aged from 12 to 18." Although the book contained mainly correct, factual information, it also included "sentences or paragraphs that young people at a critical stage of their development could have interpreted as an encouragement to indulge in precocious activities harmful for them or even to commit certain criminal offences" (para.52).
42. Ibid, p.753, para.48.
44. Ibid, para.49.
45. Müller v. Switzerland, Judgement of 24 May 1988, Series A, No.133; 13 EHRR 212 (1991). Müller, an artist, was convicted in Switzerland for exhibiting 'obscene' paintings, which were temporarily forfeited. There had been no attempt to protect children's morals through entry fees or age restrictions on the exhibition.
46. Otto-Preminger Institute v. Austria, Judgement of 20 Sept. 1994, Series A, No.295-A; 19 EHRR 34 (1995). The Austrian authorities seized and forfeited an allegedly blasphemous film from a private institute on the grounds that it would have been offensive to Christians. The Commission on Human Rights found a violation of Article 10, but the Court ruled by six votes to three that there had not. At issue was whether the action was proportionate to the legitimate aim pursued, and therefore 'necessary in a democratic society'. The basis of the Court's decision was that most people living in the area were Roman Catholic and the state had acted to protect their rights and prevent disorder, and therefore was within the state's margin of appreciation.
47. Harris, O'Boyle, and Warbrick, supra note 5, p.387.
48. Wingrove v. United Kingdom. In this case, the British Board of Film Classification refused to issue a classification certificate to Nigel Wingrove for his video Visions of Ecstasy on grounds that it was blasphemous. This effectively banned the film as it is an offence in the UK to supply or offer a video for which no classification certificate has been issued (from Article 19 and Interights, Blasphemy and Film Censorship: Submission to the European Court of Human Rights in Nigel Wingrove v. United Kingdom, London, December 1995, p.3-4).
49. Jersild v. Denmark, Judgement of 23 September 1994, Series A, No.298; 19 EHRR 1 (1995). Jersild was a Danish journalist working for a respected television news programme. He reported on a group of extremist youths -the Greenjackets - who made racist comments about black people and immigrants in Denmark. The youths, the journalist and the news chief were prosecuted and convicted. However, the Court ruled that the penalties imposed on the media had violated Article 10, as the news item was not intended to engender racist views, but to expand on an issue that was already of considerable public interest.
50. Ibid, p.28.
51. Ibid, p.26 and 28.
52. Harris, O'Boyle, and Warbrick, supra note 5, p.407.
53. Article 19 and Interights, Protection of Journalists' Sources: Comparative Law and Jurisprudence. Written comments submitted to the European Court of Human Rights in the Case of William Goodwin v. The United Kingdom, London, April 1995, p.2. The document cites examples from the Supreme Courts of India, Mauritius, and Papua New Guinea; and the Inter-American Court of Human Rights.
54. Jacobs and White, supra note 20, p.404.
Cite as: Burnheim, Sally Freedom of Expression on Trial: Caselaw under European Convention on human rights KO'AGA ROÑE'ETA se.i (1997) - http://www.derechos.org/koaga/i/burnheim.html
Civil and Political Rights
Ko'aga Roñe'eta, Series I