Media: L2 – The Impact of the ECtHR Cases on the Media
The margin of appreciation under art 10:
Handyside (see lecture 1)
H argued that banning the book had infringed his Art 10 rights.
ECtHR held: it was up to each MS to determine its own standards of morality and
that UK authorities had acted within that margin of appreciation
Art 10: Freedom of Expression and the Right to Receive Information:
In Open Door & Dublin Well Women Centre v Ireland, the ECtHR held that
there had been a breach of Art 10 where an injunction was granted preventing
dissemination of info about pregnancy-related issues.
- Even though Ireland had the right to protect the life of the unborn child, the
impact of the injunction had a disproportionate effect because it had the effect of
preventing counselling and there was a danger of ending pregnancy at a later
date because of this.
- The public’s right to know is a major issue
In Muller v Switzerland, the Court considered a complaint that Art 10 had been
breached when the applicant was convicted of publishing obscene paintings. Held:
the conviction did not breach of Art 10 as “artists who publish their work are not
immune from Art 10(2)”. Anyone exercising freedom of expression has certain
duties and responsibilities. The scope of those duties and responsibilities depends on
the facts of the case.
Interaction between art 6 and 10:
In Steel & Morris v UK, the applicants handed out leaflets making allegations
about McDonalds who sued for defamation. Applicants not given legal aid as it is
not available in defamation proceedings and were therefore forced to represent
themselves when M could afford the best legal representation. Held: the complexity
of the case and the difference in levels of legal support available led to unfairness
and a breach of Art 6 (the right to a fair trial).
- The procedural unfairness and the large award of damages (£60,000) also
amounted to a breach of Art 10.
- Clear that individuals who wrote pamphlets were entitled to argue Art 10 even
though they were not part of the media.
Use of art 10 Must be Necessary and Proportionate:
In Observer & Guardian v UK (Spycatcher), publication of the memoirs of Peter
Wright (a former spy) were banned in the UK.
- Held: banning them was pointless as they were available in the USA. It could
not be said that the injunction was keeping the information secret as it was
already in the public domain.
Any infringement of Art 10 must be both necessary and proportionate.
Prior restraint under English law will always be tough to argue when the material is
available elsewhere especially with the internet.
News is of course a perishable commodity and to delay its publication even for a
short while might deprive it of any interest and value.
Jersild v Denmark, held there were limits on freedom of expression. A Danish
journalist made a t.v. programme on racist youth culture in Scandinavia
The margin of appreciation under art 10:
Handyside (see lecture 1)
H argued that banning the book had infringed his Art 10 rights.
ECtHR held: it was up to each MS to determine its own standards of morality and
that UK authorities had acted within that margin of appreciation
Art 10: Freedom of Expression and the Right to Receive Information:
In Open Door & Dublin Well Women Centre v Ireland, the ECtHR held that
there had been a breach of Art 10 where an injunction was granted preventing
dissemination of info about pregnancy-related issues.
- Even though Ireland had the right to protect the life of the unborn child, the
impact of the injunction had a disproportionate effect because it had the effect of
preventing counselling and there was a danger of ending pregnancy at a later
date because of this.
- The public’s right to know is a major issue
In Muller v Switzerland, the Court considered a complaint that Art 10 had been
breached when the applicant was convicted of publishing obscene paintings. Held:
the conviction did not breach of Art 10 as “artists who publish their work are not
immune from Art 10(2)”. Anyone exercising freedom of expression has certain
duties and responsibilities. The scope of those duties and responsibilities depends on
the facts of the case.
Interaction between art 6 and 10:
In Steel & Morris v UK, the applicants handed out leaflets making allegations
about McDonalds who sued for defamation. Applicants not given legal aid as it is
not available in defamation proceedings and were therefore forced to represent
themselves when M could afford the best legal representation. Held: the complexity
of the case and the difference in levels of legal support available led to unfairness
and a breach of Art 6 (the right to a fair trial).
- The procedural unfairness and the large award of damages (£60,000) also
amounted to a breach of Art 10.
- Clear that individuals who wrote pamphlets were entitled to argue Art 10 even
though they were not part of the media.
Use of art 10 Must be Necessary and Proportionate:
In Observer & Guardian v UK (Spycatcher), publication of the memoirs of Peter
Wright (a former spy) were banned in the UK.
- Held: banning them was pointless as they were available in the USA. It could
not be said that the injunction was keeping the information secret as it was
already in the public domain.
Any infringement of Art 10 must be both necessary and proportionate.
Prior restraint under English law will always be tough to argue when the material is
available elsewhere especially with the internet.
News is of course a perishable commodity and to delay its publication even for a
short while might deprive it of any interest and value.
Jersild v Denmark, held there were limits on freedom of expression. A Danish
journalist made a t.v. programme on racist youth culture in Scandinavia
