Lecture notes LAA327-Media Law (LAA327)

LAA327 Media Law

Large Group Session 1 – Freedom of Speech
• Key point – what does it mean?
• Unis centre point of debate
• Long history – goes back to Ancient Greeks
• No strict legal definition except in Art 10
• Speech and expression used interchangeably (normally have different
defs)
• Why important? – necessary for democracy
• Press provide vital watchdog role – watches public or public figures for
public
• Reveal potential stories – important
• Gossip stories – not important
• Freedom of speech restricted heavily in undemocratic countries
(dictatorships)


• Mill – harm principle: criminalise or prevent freedom of speech if it
causes harm to others (in liberal countries)


• Marketplace of ideas


• Social media algorithms based on logic – push content based on what is
viewed; one sided viewership to confirm certain ideas

,• Certain press companies support certain ideas – readers support those
ideas and you know that because they read the content
• Uniquely human to speak and engage in debate
• If speech restricted self-fulfillment taken away
• Can take away others rights, i.e. racist person vs race targeted
• Cannot have democracy without freedom of speech


• To protect others
• Important role
• Where draw line?
• Media law = big topic
• Official Secrets Act
• Sedition – anything to bring down the State; overthrow Gov
• Restrict freedom of speech in E&W
• Social consequences – social censure


• ECHR
• Qualified right
• Para 2 important responsibilities
• Written by british lawyers
• Protect impartiality of the system
• Various stages
•




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,• Does the expression fall under Art 10(1)? (hate speech may be excluded
under Art 17) -> if so, its an interference justified under Art 10 (2)? ->
necessary in a democratic society? -> court considers aim, type of
expression, source of expression, who, what expression is about
• Does the expression fall under Art 10(1)? (hate speech may be excluded
under Art 17) -> if so, its an interference justified under Art 10 (2)? ->
prescribed by law?
• Does the expression fall under Art 10(1)? (hate speech may be excluded
under Art 17) -> if so, its an interference justified under Art 10 (2)? ->
meet a legitimate aim?
• Garaudy v France
o Argued freedom of speech HR breached
o Been prosecuted under law criminalising Holocaust denial
o Claim denied under Art 17
• Art 17 – cant use any other convention rights in a way that goes against
ethos of convention
• Only hate speech doesn’t engage Art 10
• Pornography does engage Art 10
• Legit aim – rights of others (protect)
• Courts apply proportionality test – is there a less restrictive way to get
aim?


• Starting point – Mill’s harm principle
• Freedom of speech comes with the right to challenge viewpoints
• Proximity in time and geography factors (eg Trump speech that caused
riots in the Capitol building)
• Meant physical harm



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, • Modern context – harm extends past physical


• Joel Feinberg – American
• Law should protect people from being offended by speech
• Does have a shape in legislation
• Offense less serious consequence than harm (physical or psychological or
otherwise)
• Note in caution – historical case law
• Where do you draw the line? What % of people need to be offended
before you ban something?
• Avoid things that offend (i.e. offended by Mein Kampf – don’t read book;
no need to ban book)
• Moving away from principle in English law


• Opposite of liberalism
• Restrict speech because harm would come to yourself (not others)
• Probability of harm
• Stokie case
o Neo-Nazis
o Intended to march through Stokie (village was predominantly
Jews – survivors/relatives of Holocaust)
o USSC wanted to wear Nazi uniforms and display Nazi insignias
etc
o Villagers wanted injunction for no Nazi displays
o Claim succeeded




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