Freedom of Expression


Holocaust denial in a parliamentary speech: criminal conviction not a breach of Article 10

11 October 2019 by

Pastörs -v- Germany (Case no. 55225/14))

On 3 October 2019 the European Court of Human Rights dismissed an application by former NDP leader Udo Pastörs that his criminal conviction in Germany for making a “qualified Auschwitz denial” in a parliamentary speech infringed his right to freedom of speech under Article 10 ECHR. The Court held that, although interferences over statements made in parliament must be closely scrutinised, they deserve little, if any, protection if their content is at odds with the democratic values of the ECHR system.

Previous Holocaust denial cases before the European Court have arisen from statements made in various media, including a book (Garaudy -v- France (dec.), no. 65831/01, 24 June 2003), a TV show (Williamson -v- Germany, no. 64496/17, 8 January 2019) and even as part of a comedy routine (M’Bala M’Bala -v- France, no. 25239/13, 20 October 2015). This time the Court was called upon to consider statements made in a parliamentary context. The case involves ultra-right wing nationalist politics, parliamentary immunity from prosecution, the parliament’s ability to self-regulate that immunity, and the courts as final arbiters of such disputes. Although the statements concerned were made back in 2010, 9 years later the case still feels very topical.


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CA orders release of court judgment on Ellie Butler’s death

9 August 2016 by

benbutler2106aC (a child) [2016] EWCA Civ 798  read judgment

This is the most recent in the long series of legal steps touching on the violent career of Ben Butler, recently convicted of the murder of his daughter, Ellie. 

Butler was convicted for Grievous Bodily Harm, and then cleared on appeal. Care proceedings were commenced at the end of which Ellie was ordered to be returned to her parents by Hogg J in October 2012. A year later, on 28 October 2013, Ellie was found dead.

C, the subject of this appeal, is Ellie’s younger sister. In June 2014, Eleanor King J, in the family courts, found that Butler had caused Ellie’s death, Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and C had been the victim of physical and emotional abuse. This judgment had been the subject of reporting restrictions.

Immediately after Butler’s conviction in June 2016, media organisations applied for the release of Eleanor King J’s judgment to Pauffley J in the family court. Pauffley J dismissed this application. Her decision was roundly reversed in this decision of the Court of Appeal.

The human rights clash is the familiar one of freedom of expression under Article 10 versus the right to a fair trial under Article 6 ECHR.

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Saudi blogger awarded Sakharov prize

29 October 2015 by

isThe European Parliament has awarded the Sakharov Prize for Freedom of Thought to Saudi Arabian blogger, Raif Badawi. The Prize, named after Andrei Sakharov who spoke out publicly against the nuclear arms race during the Cold War and criticised Soviet society, is awarded to those who “have made an exceptional contribution to the fight for human rights across the globe, drawing attention to human rights violations as well as supporting the laureates and their cause.”
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Je suis James: Pianist finally allowed to tell his story of sexual abuse

22 May 2015 by

Guardian: James Rhodes and friends including Benedict Cumberbatch outside Court

Guardian: James Rhodes and friends including Benedict Cumberbatch outside Court

James Rhodes v OPO (by his Litigation Friend BHM) and another, [2015] UKSC 32

The Supreme Court has handed down its judgment in an appeal by the celebrated concert pianist, James Rhodes. You can read the judgment here and watch Lord Toulson’s summary here.

The case considered whether Mr Rhodes could be prevented from publishing his memoir on the basis that to do so would constitute the tort of intentionally causing harm. Those acting on behalf of Mr Rhodes’ son were particularly concerned about the effect upon him of learning of details of his father’s sexual abuse as a child.

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The Big Fat Gypsy Judicial Review

26 February 2015 by

images

Traveller Movement v Ofcom and Channel 4, [2015] EWHC 406 (Admin), 20 February 2015 – read judgment

One of the nation’s great televisual fascinations last week became the unlikely subject of an Administrative Court judgment that demonstrates the limits of common law standards of fairness, as well as the lightness of touch applied by the courts when reviewing the decision-making of the media regulator.

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CA supports anonymity orders in personal injury approval hearings

19 February 2015 by

baby-birth-injuryJX MX (by her mother and litigation friend AX MX) v. Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, 17 February 2015 – read judgment

Elizabeth Anne Gumbel QC and Henry Whitcomb of 1COR (instructed by Mark Bowman of Fieldfisher) all appeared pro bono for the successful appellant in this case. They have played no part in the writing of this post.

For some years there has been debate between the judges about whether anonymity orders should be made when very seriously injured people’s claims are settled and the court is asked to approve the settlement. This welcome decision of the Court of Appeal means that anonymity orders will normally be made in cases involving protected parties. 

This is why the CA reached its decision.

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“What’s in a name”? Privacy and anonymous speech on the Internet

1 October 2014 by

internet-anonymityKeynote speech by Lord Neuberger at 5 RB Conference on the Internet, 30 September 2014

The President of the Supreme Court has delivered a very interesting address on the protections that should be afforded to what might be termed the “new Fourth Estate” – journalism on the internet. The following summary does not do justice to his speech but is meant to act as a taster – download the full text of his talk here.

Lord Neuberger explores the interrelationship of privacy and freedom of expression, particularly in the light of developments in IT, and especially the internet. He recalls a colourful eighteenth century figure who contributed a series of letters to a widely disseminated journal under the pseudonym of “Junius”. He managed to make such effective attacks on public figures he brought about the resignation of the Prime Minister, the Duke of Grafton, in 1770. Because of his anonymity this character was able to make criticisms of the powerful for which others of his time faced prosecution.

Junius offered a voice of firm if sometimes scurrilous criticism, prompting both political and legal change. He is rightly remembered as one of the greatest political writers in an age dominated by great figures, yet his identity [still]  remains a mystery.

And it is this lack of traceability that links Junius with today’s bloggers. Print journalists are – with the exception of writers for The Economist – known figures. But forty percent of the world’s population use the internet, and despite initial expectations that bloggers and tweeters could hide behind pseudonyms, it has turned out to be extremely difficult for internet writers to maintain their anonymity. The public and the courts increasingly recognise the press’ interest in publishing the names of individuals in appropriate circumstances.
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When does a righteous campaign shade into harassment?

30 September 2014 by

Chessington_World_of_Adventures_Kobra2Merlin Entertainments LPC,  Chessington World of Adventures Operations and others v Peter Cave [2014] EWHC 3036 (QB)  25 September 2014 – read judgment 

This case explores the extent to which a campaign of criticism, conducted by internet and email, can merit restraint by the civil courts. As the judge says, whatever the aims of the campaign in question, its supporters may, in the course of their activities, annoy, irritate, and upset companies and individuals.  But should the courts interfere, before the question whether the campaign is justified has been decided?  And to what extent is such a campaign a criminal offence?

This particular dispute concerned a series of communications by the defendant to the general public about the inadequacy of safety measures and other shortcomings of the claimants’ amusement parks. The claimants contended that Dr Cave’s communications with the public and with their employees were defamatory, and in breach of confidence, and that they were thereby entitled to stop him, before any trial, by relying on the statutory tort of harassment. They therefore applied for an interim injunction restraining the defendant from setting up websites and sending mass emails regarding the issue of safety in theme parks. The question before the judge was whether they should wait until they had established defamation and/or breach of confidence, before the court granted a remedy.
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Anonymity order compatible with Convention and common law – Supreme Court

9 May 2014 by

anonymity21A (Respondent) v British Broadcasting Corporation (Appellant) (Scotland)  [2014] UKSC 25 – read judgment

This appeal related to whether the Scottish Courts took the correct approach to prohibit the publication of a name or other matter in connection with court proceedings under section 11 of the Contempt of Court Act 1981, and whether the court’s discretion was properly exercised in this case.  The Supreme Court unanimously dismissed the appeal by the BBC.

The following report is based on the Supreme Court’s Press Summary.   References in square brackets are to paragraphs in the judgment.

Background 

A, a foreign national, arrived in the UK in 1991. He was later granted indefinite leave to remain, but in 1996 was sentenced to four years’ imprisonment for sexual offences against a child. In 1998, he was served by the Home Secretary with a notice to make a deportation order [4]. He appealed against the decision and protracted proceedings followed in which A cited risks due to his status as a known sex offender of death or ill-treatment (contrary to Articles 2 and 3 of the European Convention on Human Rights  should he be deported. A’s identity was withheld in the proceedings from 2001 onwards [5]-[9].
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Travails of the War Horse orchestra

23 April 2014 by

War-HorseAshworth and others v the Royal National Theatre [2014] 1176 – read judgment

Anyone who saw one of the early performances of War Horse in its first season at the National Theatre will remember how profoundly moving was the live music, with the musicians visible along the sides of the theatre above the stage.  Since that highly successful (and profitable) first season the role of the orchestra had been radically reduced, and now looks as if it is about to vanish altogether.

Background

War Horse opened at the Olivier Theatre in 2007, but since 2009 it has played at the New London Theatre. The claimants were engaged in March 2009 to play their instruments in the new production,  as a small company of wind players accompanying recorded music.  Productions of War Horse in other parts of the world have relied wholly on recorded music. In light of that, and because both the co-director of War Horse and the composer concluded that it was better for accuracy and impact to deliver the score through recorded music. The National Theatre sent the claimants letters giving notice of termination of their contracts to expire on 15 March 2014. In the letters the National Theatre stated that the grounds were redundancy.

The dispute

The claimants sought an order from the court, prior to the trial of the main action, to require the National Theatre to continue to engage them in the production of War Horse until the trial of their claim. They also relied upon the right to artistic expression protected by Article 10 of the human rights Convention.
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The difference between public and private law – on a beach near me

1 November 2013 by

article-2228546-001DDD4300000258-451_634x411More naturism and the law, in the light of Mr Gough’s travails: see my post of yesterday.

For many years, the beautiful beach upon which Ms Paltrow was seen in Shakespeare in Love (my pic) has been a haven for naturists, even on the chilliest of days when the wind whips in from the north-east. However, things have changed this year. Initially, naturism was banned from the beach completely. The ban has now been lifted for the area of sand below the mean high water mark, but remains in place for the sand dunes.

How so?

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Freedom of expression – nakedness in a public place

31 October 2013 by

Stephen_Gough_at_lands_endGough v. Director of Public Prosecution [2013] EWHC 3267 – read judgment

Mr Gough wishes to walk up and down the UK naked. Others do not approve of this, so his progress has been somewhat stop-start. This appeal concerns a brief and inglorious autumnal outing in Halifax. He was released from the local nick at 11.30 am on 25 October 2012,  wearing only walking boots, socks, a hat, a rucksack and a compass on a lanyard around his neck. “He was otherwise naked and his genitalia were on plain view.” He then walked through Halifax town centre for about 15 minutes.

In the words of the judgment, he received a “mixed reaction” from its inhabitants.  At least one female member of the public veered out of his way. Evidence from two women was to the effect that they were “alarmed and distressed” and “disgusted” at seeing him naked. One of the women was with a number of children at least one of whom, 12 years old, she reported as “shocked and disgusted”. The district judge found that it caused one of the women to feel at risk, and, further, based on the evidence, that it caused alarm or distress.

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Court of Appeal refuses anonymity for offender

25 October 2013 by

anonymity21Fagan, R (on the application of) v Times Newspapers Ltd and others [2013] EWCA Civ 1275 – read judgment

Only “clear and cogent evidence” that it was strictly necessary to keep an offender’s identity confidential would lead a court to derogate from the principle of open justice. The possibility of a media campaign that might affect the offender’s resettlement could not work as a justification for banning reporting about that offender, even though a prominent and inaccurate report about him had already led to harassment of his family.

This was an appeal by a serving prisoner, SF, against the dismissal of his application for anonymity and reporting restrictions in judicial review proceedings.
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Back to basics: why a public authority can’t be an HRA victim

17 October 2013 by

SLMRightToProtestFrontSmall.previewDavid Mead, in an interesting post – here – about “publicness” in section 6 of the Human Rights Act, looks at a case in which the Olympic Delivery Agency got an injunction against protesters: Olympic Delivery Authority v Persons Unknown . The ODA was a public authority, and the protesters were advancing defences under Articles 10 (freedom of expression) and 11 (freedom of association). Arnold J dismissed the defences on the basis that these rights needed to be balanced against the ODA’s rights to property under A1P1

As Mead points out, the judge was probably wrong to do so. On the face of it, the ODA had no rights under the Convention, under A1P1 or otherwise, because it was a public authority, and was likely to be acting as such in its protester-clearing role. One can perhaps save the judge’s blushes, by a slightly different route. The right of free speech under Article 10(1) has to be balanced against the protection of the rights of others under Article 10(2), and the latter would cover the ODA’s property rights which it was enforcing.

But the more fundamental question is why public authorities (think local authorities or NHS Trusts) cannot complain that they are HRA victims. After all, they can be unfairly dumped on by central government, can be lied about, can have their finances cut, their functions or their premises taken away (hospital unit closures), can receive an unfair trial, and ultimately lose their “life” in some governmental reorganisation.

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Turkish block on Google site breached Article 10 rights, rules Strasbourg

16 January 2013 by

google-sign-9YILDIRIM v. TURKEY – 3111/10 – HEJUD [2012] ECHR 2074 – Read judgment

In the case of Yildrim v Turkey the European Court of Human Rights decided that a Court order blocking access to “Google Sites” in Turkey was a violation of Article 10.  The measure was not “prescribed by law” because it was not reasonably foreseeable or in accordance with the rule of law.  The judgment is available only in French.

He owned and ran a website hosted by the Google Sites service, on which he published his academic work and his opinions on various matters.  On 23 June 2009 the Denizli Criminal Court of First Instance ordered the blocking of an Internet site whose owner had been accused of insulting the memory of Atatürk. The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner.

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