COMPARATIVE MEDIA LAW SESSION 9.d Dirk VOORHOOF Ghent University (->contact)

COMPARATIVECOMPARATIVEMEDIA LAWMEDIA LAW

SESSION 9.dSESSION 9.d

Dirk VOORHOOFDirk VOORHOOFGhent UniversityGhent University

www.psw.ugent.be/dvwww.psw.ugent.be/dv (->contact)(->contact)

Freedom of expression on public places Freedom of expression on public places

Freedom of expression /demonstration Freedom of expression /demonstration and other rights and other rights

FOX & EU-freedoms FOX & EU-freedoms FOX & property rightsFOX & property rights

- Schmidberger (Austria) – ECSchmidberger (Austria) – EC- Case of Appleby v. UK – ECourtHRCase of Appleby v. UK – ECourtHR

Schmidberger v. Austria (ECJ)Schmidberger v. Austria (ECJ)

- International transport undertaking seeking - International transport undertaking seeking damages against Austria that failed to ban a damages against Austria that failed to ban a demonstration demonstration (free movement of goods)(free movement of goods)

- questions to ECJ for a preliminary ruling- questions to ECJ for a preliminary ruling


- The fact that a member state - The fact that a member state abstains from taking action or fails to abstains from taking action or fails to adopt adequate measures to prevent adopt adequate measures to prevent obstacles to obstacles to the free movementthe free movement of of goodsgoods that are created by private that are created by private individuals on its territory individuals on its territory is likely to is likely to obstruct intra-Community tradeobstruct intra-Community trade


- EU-member states must take - EU-member states must take all all necessary and appropriate necessary and appropriate measuresmeasures to ensure the fundamental to ensure the fundamental freedom of movement of goods is freedom of movement of goods is respected on their territoryrespected on their territory


- The Austrian authorities were inspired by - The Austrian authorities were inspired by the considerations linked to respect of the the considerations linked to respect of the fundamental rights of demonstrators to fundamental rights of demonstrators to freedom of expressionfreedom of expression and freedom of and freedom of assembly, which are enshrined in and assembly, which are enshrined in and guaranteed by the ECHR and the Austrian guaranteed by the ECHR and the Austrian ConstitutionConstitution


- - protection of human rights is integral part protection of human rights is integral part of general principles of law > ECJ of general principles of law > ECJ

- ECHR has special significance in this - ECHR has special significance in this respectrespect- Art. F.2 Treaty of European Union (- Art. F.2 Treaty of European Union (par. 72par. 72))

> WHAT prevails??? > WHAT prevails??? ° EU fundamental freedom < goods° EU fundamental freedom < goods° ECHR fundamental freedom < ° ECHR fundamental freedom <

expressionexpression


- Free movement of goods is fundamental - Free movement of goods is fundamental principle, it may however be subject to principle, it may however be subject to restrictionsrestrictions for reasons in relation to the for reasons in relation to the public interest (art. 36 EU-Treaty)public interest (art. 36 EU-Treaty)

- Freedom of expression and assembly as - Freedom of expression and assembly as guaranteed by Art. 10 and 11 ECHR may also guaranteed by Art. 10 and 11 ECHR may also be subject to be subject to restrictionsrestrictions by objectives in by objectives in the public interest, when in accordance with the public interest, when in accordance with § 2§ 2


- - ArgumentsArguments legitimizing the legitimizing the approach of the Austrian approach of the Austrian authorities with regard the respect authorities with regard the respect of freedom of expression by the of freedom of expression by the demonstrators?demonstrators?

Arguments?Arguments?1. Demonstration after request for 1. Demonstration after request for authorisation – no banauthorisation – no ban

2. Limited action (time/place)2. Limited action (time/place)

3. Aim was not to restrict trade of goods of 3. Aim was not to restrict trade of goods of particular type or sourceparticular type or source

Aim was manifesting public opinion Aim was manifesting public opinion (environment protection)(environment protection)

= importance in society= importance in society

Arguments?Arguments?

4. Various administrative and supportive 4. Various administrative and supportive measures have been taken by authorities in measures have been taken by authorities in order to limit as far as possible the disruption order to limit as far as possible the disruption of road trafficof road traffic

- extensive publicity!- extensive publicity!- media!- media!

+ alternative routes+ alternative routes

Arguments?Arguments?5. No general, serious and repeated 5. No general, serious and repeated disruptions, only isolated incident in disruptions, only isolated incident in questionquestion

6. Ban of demonstration would have 6. Ban of demonstration would have constituted unacceptable interference constituted unacceptable interference with with fundamental rights of demonstrators fundamental rights of demonstrators to to gather and express peacefully gather and express peacefully their their opinions in publicopinions in public

+ other risks !+ other risks !

Schmidberger - Austria,12 June 2003Schmidberger - Austria,12 June 2003

Conclusion of ECourt JusticeConclusion of ECourt Justice

The fact that the Austrian The fact that the Austrian authorities did not ban a authorities did not ban a demonstration in these demonstration in these circumstances is not incompatible circumstances is not incompatible with the Art. 30 and 34 of the with the Art. 30 and 34 of the Treaty (> no liability!)Treaty (> no liability!)

Appleby and Others v. UK (ECHR)Appleby and Others v. UK (ECHR)

- Applicants represent environmental Applicants represent environmental group “Washington First Forum”group “Washington First Forum”

Washington/NewcastleWashington/Newcastle


- Prevented from meeting in the town Prevented from meeting in the town centre, a privately owned shopping centre, a privately owned shopping centre (the “centre (the “GalleriesGalleries”), to impart ”), to impart information and ideas about proposed information and ideas about proposed local development planslocal development plans


- Applicants were stopped by security Applicants were stopped by security guards to display posters and guards to display posters and distribute leaflets alerting the public to distribute leaflets alerting the public to the likely loss of open space in the the likely loss of open space in the local community. Ordered to remove local community. Ordered to remove their stands and stop collecting their stands and stop collecting signatures.signatures.


- Written refusal of permission by Written refusal of permission by manager of the “Galleries” to canvas manager of the “Galleries” to canvas or collect signatures in shopping centeror collect signatures in shopping center


- Common law: property rights, implied Common law: property rights, implied invitation may be revokedinvitation may be revoked

- UK CIN Properties Ltd. V. Rawlins- UK CIN Properties Ltd. V. Rawlins- USA: First amendment and property - USA: First amendment and property

rights – free speech provisions did not apply rights – free speech provisions did not apply to privately owned shopping centre & First to privately owned shopping centre & First Amendment does not prevent a private Amendment does not prevent a private shopping centre owner from prohibiting shopping centre owner from prohibiting distribution on its premises of leaflets distribution on its premises of leaflets unrelated to its own operationsunrelated to its own operations


1.1. General principlesGeneral principles1.1. Key importance of freedom of expression as Key importance of freedom of expression as

one of the preconditions for a functioning one of the preconditions for a functioning democracydemocracy

2.2. Effective exercise of this freedom does not Effective exercise of this freedom does not only depend merely on the state’s duty not to only depend merely on the state’s duty not to interfere, but may require positive measuresinterfere, but may require positive measures

- Interests society/individualInterests society/individual- Fair balanceFair balance- No impossible or disproportionate burden on the No impossible or disproportionate burden on the

authoritiesauthorities


2.2. Arguments Arguments Interference by private company, Interference by private company,

Government does not bear any DIRECT Government does not bear any DIRECT responsibility for restriction in the responsibility for restriction in the applicant’s freedom of expression applicant’s freedom of expression -> Question is: has Government failed in -> Question is: has Government failed in any positive obligation to protect any positive obligation to protect freedom of expression?freedom of expression?

Action > topic of public interest, debate Action > topic of public interest, debate local policy (urban planning, green area)local policy (urban planning, green area)


2. Arguments 2. Arguments

3. Art. 10 Convention, but applicants’ 3. Art. 10 Convention, but applicants’ freedom of expression is not unlimitedfreedom of expression is not unlimited

4. Article 1 of Protocol 1, but property right 4. Article 1 of Protocol 1, but property right of owner of shopping center is not of owner of shopping center is not unlimitedunlimited


2.2. Arguments Arguments

5. Shopping centre is also town centre5. Shopping centre is also town centre(reference to US-case law)(reference to US-case law)

> “quasi-public place”?> “quasi-public place”?

6. US Supreme Court: no First Amendment 6. US Supreme Court: no First Amendment protection of right of free speech in protection of right of free speech in privately owned shopping mallprivately owned shopping mall



7. No right of entry to private property7. No right of entry to private propertyBUT!!!BUT!!!Court does not exclude positive Court does not exclude positive obligation for state by regulating obligation for state by regulating property rightsproperty rightse.g. e.g. where barwhere bar on access has effect of on access has effect of preventing any exercise of freedom of preventing any exercise of freedom of expression and essence of right is destroyedexpression and essence of right is destroyed



8. Restriction on acces was limited to 8. Restriction on acces was limited to entrance and passagewaysentrance and passageways- access to shops, supermarket- access to shops, supermarket- leaflets on public access paths to the - leaflets on public access paths to the areaarea

9. Other possibilities in old town centre9. Other possibilities in old town centre((Galleries = easiest and most effective?)Galleries = easiest and most effective?)


2. Arguments2. Arguments

10. Applicants cannot claim that they were 10. Applicants cannot claim that they were as a result of the refusal of the private as a result of the refusal of the private company effectively prevented from company effectively prevented from communicating their views to their fellow communicating their views to their fellow citizens.citizens.Their action has had supportTheir action has had support


3. Conclusion3. Conclusion

Having regard to the nature and scope of Having regard to the nature and scope of the restriction in this case, the Court is of the restriction in this case, the Court is of the opinion that the UK has not failed in the opinion that the UK has not failed in any positive obligation to protect the any positive obligation to protect the applicants’ freedom of expressionapplicants’ freedom of expression

NO VIOLATION OF ARTICLE 10 (art. 11)NO VIOLATION OF ARTICLE 10 (art. 11)


Discussion Discussion (see also dissenting opinion)(see also dissenting opinion)

- “forum publicum”- “forum publicum”

- matter of public interest- matter of public interest

- unequal treatment - unequal treatment > other groups > other groups > justified expectation > justified expectation

- no disturbance of public peace- no disturbance of public peace

- precedence to freedom of expression- precedence to freedom of expression

Documents

COMPARATIVE MEDIA LAW SESSION 9.d Dirk VOORHOOF Ghent University (->contact)