FREEDOM OF EXSPRESSION Article 10 Zlata Đurđević [email protected]

FREEDOM OF EXSPRESSIONFREEDOM OF EXSPRESSION

ArticleArticle 1010

Zlata ĐurđevićZlata Đurđević[email protected]@pravo.hr

Criminal Law Aspect of the European Convention on Human Rights

ImportanceImportance Right to Freedom of ExpressionRight to Freedom of Expression

Individual right– basic condition for the development of every person as free and

social human being

Political right– free and democratic society

– freedom of press – a constitutive part of democracy as a political system

– vital importance for pluralistic democracies

Handyside v. UK, 1976 The Court’s supervisory functions oblige it to pay the utmost attention to the

principles characterizing a "democratic society". Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.


Universal Human RightUniversal Human Right

International documents on human rights

– 1st Session of the UN General Assembly - Resolution 59(1), 1946

• “Freedom of information is a fundamental human right and is the

touchstone ot all the freedoms to which the UN is consacrated."

– Art 19 of the Universal Declaration of Human Rights (1948)

– Art 10 of the European Convention on Human Rights (1950)

– Art 19. International Covenant on Civil and Political Rights (1966)

– Art 13. The American Convention on Human Rights (1969)

– Art 9. The African Charter on Human and Peoples’ Rights (1981)

– The Charter of Fundamental Rights of the EU (2000)

• Art 11. Freedom of expression and information

• Art 42. Right of access to documents

Common European Constitutional tradition


The FThe Firstirst Amendment to the US Amendment to the US Constitution Constitution ((17911791))

Amendment 1

Freedom of Religion, Press, Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.


Freedom of Freedom of EExpressionxpression Article 10Article 10

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 exercise 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.


Three aspects of Three aspects of the right to freedom of expressionthe right to freedom of expression

freedom to hold opinions

freedom to impart information and ideas

freedom to receive / seek information and ideas


Freedom to Hold OpinionsFreedom to Hold Opinions

content – the process of the human internal life

prerequisite to other rights protected by Art 10

absolute right

negative freedom

prohibited behavior

– the state should not try to indoctrinate their citizens

– prohibition of unequal treatment due to one’s opinion

– the promotion of one-sided information

– obligation to establish pluralism in the media space


Freedom Freedom to to IImpart mpart IInformation nformation and and IIdeasdeas

key political freedom

positive but also negative expression

– Handyside v. UK, 1976

”It is applicable not only to "information" or "ideas" that are favorably received or regarded as inoffensive or as a matter of indifference, 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”

protection of content + all forms and ways of expression


Forms and Ways of ExpressionForms and Ways of Expression

WORDS

PICTURES

EXPRESSION

IMAGES

ACTIONS

DRESS

PRINTED DOCUMENTS

RADIO BROADCASTS

PAINTINGS

FILMS

ELECTRONIC INFORMATION SYSTEMS

SUBSTANCE

FORM

+ FREEDOM NOT TO SPEAK


Three forms of expressionThree forms of expression

Political

Artistic

Commercial


Political ExpressionPolitical Expression

central place in the democratic society

for public – freedom of political debate and press is method for forming opinion on ideas and behavior of politicians

discussion on the issues of public interest, political debate, election campaign and criticism of the state

a free criticism of the government is protected

the politicians have to be tolerant to harsh criticism

the highest degree of protection of the freedom of expression of offending and exaggerated critical statements


Freedom of Press and MediaFreedom of Press and Media

not expressly mentioned

special protection under Art. 10 – watchdogs of democracy

crucial role in informing public and creating public political debate

journalist freedom covers a degree of exaggeration, or even provocation

opinions, critics or speculation, especially in political arena, even founded on the facts that are not true can be protected

right of the journalists to publish rumors, allegations and gossips

it would be unacceptable for a journalist to be debarred from expressing critical value judgments unless s/he could prove their truth


Facts and Value JudgmentsFacts and Value Judgments Lingens v. Austria, 1986Lingens v. Austria, 1986

difference between facts and value judgments

FACTS - existence can be proved

VALUE JUDGEMENTS - truth is not susceptible to proof

o prohibition of truth proof - defense of good faith

o related mostly to the cases involving media and politics

o elements taken into account

o legitimate purpose of a publication

o public concern

o efforts to verify the facts

o sufficient factual basis


Freedom of the PressFreedom of the PressCase lawCase law

Lingens v. Austria, 1986

press as a political watchdog

Thorgeir Thorgeirson v. Iceland, 1992

matters of public concern

Jersild v. Denmark, 1994; Thoma v. Luxembourg, 2001

dissemination of statements made by other persons

Goodwin v. the United Kingdom, 1996

protection of journalistic sources


Freedom Freedom to receiveto receive information information and ideasand ideas

other side of the coin of the democratic pluralism

communication

two independent right – in correlation

refers to individuals and to the whole public

the right of public to receive information through media of public concern

to be adequately informed

– without censorship, several sources of information

freedom of press – instrument

right to gather information

right to seek information


Expression outside the protection Expression outside the protection of Art 10 para. 1 ECHRof Art 10 para. 1 ECHR

The Court has excluded– racist speech

– promotion of Nazi ideology

– incitement to hatred and racial discrimination

“contrary to the text and spirit of the Convention" Theory of the Paradox Tolerance

– an absolute tolerance may lead to tolerating ideas promoting intolerance, and the latter could then destroy the tolerance

interference of the state would be justified – Art. 10/2 Art. 17 -Prohibition of abuse of rights

– Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation

to a greater extent than is provided for in the Convention.


Conflict with other Rights - Conflict with other Rights - LimitationsLimitations

Art 10/2

The exercise 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.


1. Exercise

• only the exercise can be limited, not the content

2. Duties and responsibilities

• civil service: • particular categories of information

• secrecy examined periodically

• specific categories of civil servants

• temporary

3. Formalities, conditions, restrictions or penalties Censorship - most dangerous form of interference Licensing of journalists, prior authorization Criminal convictions Civil damage Confiscation or seizure of means Prohibition of advertising - commercial expression

States enjoy wider margin of appreciation (Markt Intern Verlag GmbH and Klaus Beermann v. Germany, 1989)

Order to reveal journalistic sources (Goodwin v. UK, 1979) Search of newspaper or broadcasting premises


Limitation to the right Limitation to the right to freedom of expression to freedom of expression

In accordance with Law

Legitimate aim

Necessary in the democratic society

– pressing social need

– proportionate


Legitimate aimLegitimate aim

a) national security, territorial integrity or public safety

b) the prevention of disorder or crime

c) the protection of health or morals

d) the protection of the reputation or rights of others

e) preventing the disclosure of information received in

confidence

f) maintaining the authority and impartiality of the judiciary


Court’s approach to Art. 10 = Art. 8Court’s approach to Art. 10 = Art. 8

1. Does the issue fall within the scope of Article 10?

2. Was there an interference with the right?

3. Was the interference in accordance with the law?

4. Did the interference pursue a legitimate aim?

5. Was it necessary in a democratic society and proportionate, taking into account the margin of appreciation?


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FREEDOM OF EXSPRESSION Article 10 Zlata Đurđević [email protected]