Freedom of Expression


Alien poster campaign’s anti-religious message

22 July 2012 by

Updated | Mouvement Raëlien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012) – read judgment

This case concerned the Swiss authorities’ refusal to allow an association to put up posters featuring extraterrestrials and a flying saucer on the ground that it engaged in activities that were considered immoral.

The association complained it had suffered a violation of its right to freedom of expression. The Grand Chamber did not agree, ruling that the refusal had met a “pressing social need” and that the authorities had not overstepped the broad margin of appreciation given to them in view of the non-political dimension of the poster campaign.

At first blush there is nothing remarkable about this ruling. But it was a narrow majority (nine votes to eight) and a brief reading of the dissenting opinions gives pause for thought: does the slightly loony nature of a message justify its suppression? Lurking behind the authorities’ refusal to allow the association’s advertising campaign is a sense of disapproval vis a vis their anti-Christian message;  one of the campaigns the association wished to conduct featured a poster stating “God does not exist”, and on another, below the association’s website, ran the message “Science at last replaces religion”.
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Police denied TV footage of Dale Farm evictions

24 May 2012 by

BSkyB and another, R(on the application of) v Chelmsford Crown Court [2012] EWHC 1295 (Admin) – read judgment

The police failed to satisfy the court that their need for footage taken by TV organisations was likely to be of substantial value to criminal investigations and therefore would be a justified interference with the rights of a free press under Article 10 of the Human Rights Convention.

Sky, BBC, ITN etc. succeeded in quashing an order to produce of 100+ hours of video footage to Essex Police of  the Dale Farm protesters on the grounds that there were no “reasonable grounds” for believing that the footage of over 100 hours included material likely to be of substantial value to the investigation.

Background facts

After the Dale Farm evictions and the disorder that ensued, the police sought an order for the recordings taken by the claimant organisations to help identify those who had committed indictable offences when attempting to prevent the eviction.  They submitted that it was necessary, not least for the prevention of similar disorder on future occasions, to identify as many as possible of those who committed indictable offences in attempting to frustrate the lawful enforcement procedures. Production orders were duly made by Chelmsford Crown Court, defendant in this action.
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Axel Springer and Von Hannover: Grand Chamber victory for media – Inforrm

7 February 2012 by

The media were successful in both the judgments handed down this morning by the Grand Chamber of the European Court of Human Rights.  The judgments made it clear that the right to privacy has to be carefully balanced against contribution which a publication makes to a debate of general interest.  In both cases, taking account of the nature of the individuals involved and the publications the right to freedom of expression prevailed over the right to privacy. 

The judgments demonstrate the need for a careful balancing exercise in privacy cases.   Both cases involved “popular journalism” and show that,  even in this area, privacy is not a “trump card”.  The judgments will be welcomed by the media as showing that the Court of Human Rights remains sensitive to the need to protect its freedom of expression.

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Is internet access a human right?

11 January 2012 by

A recent United Nations Human Rights Council report examined the important question of whether internet access is a human right.  

Whilst the Special Rapporteur’s conclusions are nuanced in respect of blocking sites or providing limited access, he is clear that restricting access completely will always be a breach of article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression.

But not everyone agrees with the United Nations’ conclusion. Vinton Cerf, a so-calledfather of the internet” and a Vice-President at Google, argued in a New York Times editorial that internet access is not a human right:

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Anonymity ain’t here anymore for Take That’s Howard Donald

18 November 2010 by

Adakini Ntuli v Howard Donald [2010] EWCA Civ 1276 – Read judgment

Take That’s Howard Donald has failed to maintain an injunction against the press reporting details of his relationship with a former girlfriend. He had originally sought the injunction after receiving a text from the woman saying: “Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”

‘Superinjunctions’ have received a great deal of press coverage recently, not least because they are usually granted in cases involving celebrities’ private lives. They are injunctions, usually in privacy or breach of confidence cases, which prevent not only the publication of certain matters, but even the publication of the existence of legal proceedings. These cases are of particular interest because of the competing ECHR rights in play: Article 8, the right to respect for private and family life, and Article 10, the right to freedom of expression.

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Libel reform debate media round-up [updated x 3]

1 June 2010 by

We posted on Friday that the libel reform debate is hotting up now that the Coalition Government has pledged to reform the law of libel. We are following the debate because of the wide-ranging implications any significant reform will have for the law of freedom of expression, as a number of articles published over the weekend demonstrate.

Lord Lester, who has recently produced a draft libel reform bill, writes in the Times:

The chilling effect of our current libel law needs urgently to be tackled by the government and parliament. I hope that my bill will be the catalyst for much-needed legislative reform.

John Kampfner, chief executive of Index on Censorship, an organisation which aims to promote freedom of expression, writes in the Guardian:

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Evolution of a right to freedom of information?

6 May 2010 by

For much longer?

Whichever party wins today’s General Election, freedom of information in and outside the courts will be a key issue for the incoming government. In light of this, Hugh Tomlinson QC asks whether a “right to freedom of information” is evolving through human rights case law in an interesting piece on the International Form for Responsible Media Blog (Inforrm).

The Government is under increasing pressure to release information which was once uncontroversially secret. As we posted yesterday, freedom of information is a hot topic in the courts at the moment, specifically in the context of the security services and the information they are obliged to disclose to defendants in criminal trials and claimants in civil proceedings. In those scenarios, the right to a fair trial was conditional on a right to see information which goes to the heart of that trial (Article 6 ECHR). However, when divorced from the right to a fair trial, there is as yet no explicit right to information.

Article 10 of the Convention only extends to the right to “hold opinions and to receive and impart information“. This does not necessarily entail a right to access confidential Government information. Hugh Tomlinson says:

This has often been identified as an important weakness in the Convention. However, the position is changing: the Convention is a “living instrument” and recent case law suggests that, in accordance with international trends, the Convention may be evolving its own “right to freedom of information” as a fact of the right to freedom of expression in Article 10 of the Convention.

We posted recently on the the robust freedom of expression enjoyed by those living in the United States, as compared to the arguably less robust freedoms in the UK under Article 10 of the Human Rights Act 1998. Freedom of expression has gone hand in hand in the United States with superior access to government information. The US Freedom of Information Act was passed by Lyndon Johnson in 1966. It is only with the Freedom of Information Act 2000, sister-legislation to the Human Rights Act, that the UK has begun to catch up. The development of a right to freedom of information would close that gap further. As Tomlinson argues:

… the Court of Human Rights has recognised that there can be a right to access to official information. In some cases this has been done by reference to Article 8 of the Convention… Most recently, in the Hungarian Civil Liberties Union case (Társaság a Szabadságjogokért v. HungaryJudgment of 14 April 2009) the applicant had been refused access to a constitutional complaint made by an MP. The Court said that “the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information” [27]

Read more:

Feature | Freedom of expression, the American way

26 April 2010 by

The UK Supreme Court Blog has posted on United States v Stevens, a US Supreme Court decision on animal cruelty videos, involving “freedom of expression in the extreme”. The decision provides for an interesting comparison with the approach to freedom of expression in the UK courts.

If the Human Rights Act 1998 is replaced by a Bill of Rights, the Bill’s drafters are likely to look at other legal systems in order to see how best to recalibrate the balance of the various protections. The drafters of the European Convention on Human Rights themselves had the US Bill of Rights, which has been in force since 1791, as inspiration.

Similar but different

Arguably, the US Bill of Rights places a stronger emphasis on freedom of expression than our domestic law. Freedom of expression under Article 10 of the European Convention is subject to a number of qualifications. There is a long list, including the interests of national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the reputation or rights of others.

Section 12 of the Human Rights Act 1998 shifts the balance slightly, by stating that a court must pay “particular regard” to cases involving the public interest in disclosure of material which has journalistic, literary or artistic merit.

By contrast, despite the US Bill of Rights’ 219 years on the statute books, there remains only a very limited list of forms of expression which are not
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