Article 10

Article 10 | Right to freedom of expression

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Article 10 of the Convention 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 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.

Perhaps unsurprisingly this provision is almost constantly in the news since it involves the core interests of the media, outraged by the development of the so-called “super-injunction” to prevent the reporting of “kiss-and-tell” stories in the celebrity sphere, the main source of profit for the printed press. The current headache for lawmakers and enforcers is how to regulate the dissemination of this kind of information on the internet, particularly social network sites such as Twitter. See our discussions on these issues here, here, here and here.

Although Article 10 guarantees the right to “receive information”, this Article does not require the State to provide access to information which is not already available (Leander v Sweden (1987)9 EHRR 433), although a relatively recent case suggests that the Strasbourg Court may be sympathetic to Article 10 challenges where a government has refused to provide information; in Matky v Czech Republic, application no. 19101/03, the Fifth Section of the Court suggested that an ecological NGO was entitled to access to information about nuclear power stations under Article 10. However this application was ultimately found to be manifestly ill-founded as declared the application manifestly ill-founded, as in the Court’s opinion the interference satisfied the requirements set forth in paragraph 2 of Article 2.

As we see, there are a number of permissible exceptions set out in this Article. Note that no measures in pursuit of these legitimate aims will be justified unless the interference with the individual’s freedom of expression has been “prescribed by law”, and the interfering measure is “proportionate” (see our discussion of these terms in the Article 8 section. Measures can be taken to limit freedom of expression in the interests of the following:

(1)  National security, territorial integrity, public safety, the prevention of public disorder and crime ;

(2)  The impartiality of the judiciary;

(3) The protection of health and morals;

(4) The protection of the reputation and rights of others

(5) The licensing of broadcasting enterprises.

Section 12 Human Rights Act 1998 provides that special regard is to be had to the right of freedom of expression in any case where it is in issue, and the public interest in disclosure of material which has journalistic, literary or artistic merit is to be considered. See Cream Holdings and Imutran v Uncaged Campaigns Limited [2001] EMLR 563 for Section 12 in application.

No interim order may be made that would infringe free speech rights without the respondent being present unless the applicant is able to furnish “compelling reasons” as to why the respondent should not be notified. The full impact of this section in injunction hearings was considered by the Court of Appeal in Douglas and Zeta Jones v Hello! Magazine, 8 May 2005 .

It is important to remember when considering the scope of Article 10 that Article 16 of the Convention also incorporated with the Human Rights Act provides:

Nothing in Articles Article 10, Article 11, and Article 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activities of aliens.

The usefulness of this provision should not be forgotten and it could in theory be used by the government to buttress the measures it wishes to take to combat incitement to arms, religious hatred etc.

Article 16 expressly authorises restrictions on the political activities of aliens even though they interfere with freedom of expression under Article 10 and other freedoms under the Convention.