Article 10 - Freedom of Expression
Freedom of expression is recognized as an essential condition of a ‘democratic’ society but also it is necessary to be
‘truly human.’
It is for the COURTS to decide whether a restriction on political speech is ‘necessary’.
Pluralism means that Article 10 must protect ideas and expressions even if they ‘offend, shock or disturb’ the majority of
respectable citizens
Why Important?
Autonomy - In essence this is based on the idea that an individual has the right to make her own moral choices. In being
able to exercise our autonomy, we need to have the freedom to say what we think.
Democracy - This is one of the most powerful arguments for the protection of free expression, especially in relation to
political expression. The argument is simple, citizens cannot participate fully in the democratic process unless they are
allowed to freely express themselves and also to receive the free expressions of others.
Truth - In western societies we place a high value on truth and make the assumption that the search for the truth
underpins all reasoned debate. The most famous argument in favour of this can be found in Mill’s ‘On Liberty’. The idea
is that more free speech leads to more truth.
Self-fulfilment - This is essentially a rights based theory about the ability of individuals to develop morally and
intellectually. In order to do so it is argued that there must be the opportunity to voice views and opinions in free
debate. Whilst it is possible to see the merits of this argument it too is deeply flawed. How for instance does it affect the
giving or receiving of information likely to inhibit the growth and development of the speaker or recipients? Feminists
use this very point to justify restrictions placed upon pornographic material.
Questions which the Court will be thinking about:
- Is an act of speech, writing, or some other type of expression in issue in the case? IF YES
- Is it a type of expression that is protected under the terms of the first paragraph of Article 10? IF YES
Has the speech etc. been restricted (usually this will have been by a court or by a state agency such as the police)? IF YES
Justified under Article 10(2)? IF NO - Violation
Is it a type of expression that is protected under the terms of the first paragraph of Article 10?
Article 10 does NOT ONLY apply to political expression - it also includes artistic expression such as a painting, the
production of a play and information of a commercial nature.
Freedom of expression extends to the publication of photographs, as well as to forms of conduct and to rules governing
clothing.
Likewise, the Court found that a protest performance in a cathedral consisted in a mixture of verbal and non-verbal
expression, and amounted to a form of artistic expression which came within the ambit of Article 10 of the Convention.
What about illegal demonstrations and crimes?
Tatár and Fáber v Hungary
An illegal and short gathering by two individuals who hung dirty laundry to the railings of the Parliament building was
held by the Court to be a form of expression which was protected by Article 10.
Nilsen v. the United Kingdom
Measures taken by the prison administration to prevent a serial killer from publishing his autobiography, the Court
accepted that Article 10 was applicable and that the refusal to return the manuscript to the applicant so that he could
revise it with a view to its publication amounted to an interference with the exercise of his right to freedom of
expression, before concluding that the interference in question had been proportionate to the legitimate aim pursued.
, Has the speech (or other forms of expression) been restricted?
Q: Has the applicant been charged with an offence as a result of their expression?
Q: Has there been an injunction issued, or a prohibition of a publication?
Q: Has a publication been taken down?
Q: Chilling effect?
We will look at the private dimension as well (for example, being fired by something you posted on social media).
Justified under Article 10 (2)
Prescribed by law
Pursuing a legitimate aim
Necessary in democratic society
Proportionate
Prescribed by Law
There must be a basis in law for the restriction
The law must be accessible to the individual likely to be affected by it
The terms must be sufficiently precise
The law must not be arbitrary and incompatible with the ’rule of law’
Legitimate Aim; the interest of national security
Spycatcher case
Peter Wright worked for MI5. After retiring he wrote a book called Spycatcher, describing his work. This was in breach of
the Official Secrets Act 1911.
It was published in Australia and the US. The Attorney General then sought and received an interlocutory injunction
restraining publication of information obtained by Wright in June 1986. In July 1987 the Sunday Times published
extracts from the book two days before its publication in the US. The Attorney General sought and was given injunctions
to restrain further publication.
HoL: Upheld the Attorney General's appeal, finding that the Sunday Times publication was in breach of its duty of
confidence.
A duty of confidence precludes disclosure to others, and a third party (like a newspaper) with confidential information is
similarly bound by a duty if they know it is confidential.
This was true unless the confidential information was already known to the general public, or the duty to keep the
information secret was outweighed by a countervailing public interest in the information.
Official secrets
R v Shayler
S, a member of MI5, had provided journalists with 30 documents which he had obtained through his position and which
related to national intelligence and security issues.
He was prosecuted under the Official Secrets Act 1989. He argued that compatibility with Article 10 requires public
interest defense. This was rejected by the HoL – in particular because of the availability of internal complaint
mechanisms available to civil servants.
Legitimate Aim; territorial Integrity and public safety
Piermont v France
The applicant, a member of the European Parliament, took part in a banned anti-nuclear march in French Polynesia.
It was seen as a legitimate aim expelling him from the European Parliament as a result.
Surek v Turkey
Freedom of expression is recognized as an essential condition of a ‘democratic’ society but also it is necessary to be
‘truly human.’
It is for the COURTS to decide whether a restriction on political speech is ‘necessary’.
Pluralism means that Article 10 must protect ideas and expressions even if they ‘offend, shock or disturb’ the majority of
respectable citizens
Why Important?
Autonomy - In essence this is based on the idea that an individual has the right to make her own moral choices. In being
able to exercise our autonomy, we need to have the freedom to say what we think.
Democracy - This is one of the most powerful arguments for the protection of free expression, especially in relation to
political expression. The argument is simple, citizens cannot participate fully in the democratic process unless they are
allowed to freely express themselves and also to receive the free expressions of others.
Truth - In western societies we place a high value on truth and make the assumption that the search for the truth
underpins all reasoned debate. The most famous argument in favour of this can be found in Mill’s ‘On Liberty’. The idea
is that more free speech leads to more truth.
Self-fulfilment - This is essentially a rights based theory about the ability of individuals to develop morally and
intellectually. In order to do so it is argued that there must be the opportunity to voice views and opinions in free
debate. Whilst it is possible to see the merits of this argument it too is deeply flawed. How for instance does it affect the
giving or receiving of information likely to inhibit the growth and development of the speaker or recipients? Feminists
use this very point to justify restrictions placed upon pornographic material.
Questions which the Court will be thinking about:
- Is an act of speech, writing, or some other type of expression in issue in the case? IF YES
- Is it a type of expression that is protected under the terms of the first paragraph of Article 10? IF YES
Has the speech etc. been restricted (usually this will have been by a court or by a state agency such as the police)? IF YES
Justified under Article 10(2)? IF NO - Violation
Is it a type of expression that is protected under the terms of the first paragraph of Article 10?
Article 10 does NOT ONLY apply to political expression - it also includes artistic expression such as a painting, the
production of a play and information of a commercial nature.
Freedom of expression extends to the publication of photographs, as well as to forms of conduct and to rules governing
clothing.
Likewise, the Court found that a protest performance in a cathedral consisted in a mixture of verbal and non-verbal
expression, and amounted to a form of artistic expression which came within the ambit of Article 10 of the Convention.
What about illegal demonstrations and crimes?
Tatár and Fáber v Hungary
An illegal and short gathering by two individuals who hung dirty laundry to the railings of the Parliament building was
held by the Court to be a form of expression which was protected by Article 10.
Nilsen v. the United Kingdom
Measures taken by the prison administration to prevent a serial killer from publishing his autobiography, the Court
accepted that Article 10 was applicable and that the refusal to return the manuscript to the applicant so that he could
revise it with a view to its publication amounted to an interference with the exercise of his right to freedom of
expression, before concluding that the interference in question had been proportionate to the legitimate aim pursued.
, Has the speech (or other forms of expression) been restricted?
Q: Has the applicant been charged with an offence as a result of their expression?
Q: Has there been an injunction issued, or a prohibition of a publication?
Q: Has a publication been taken down?
Q: Chilling effect?
We will look at the private dimension as well (for example, being fired by something you posted on social media).
Justified under Article 10 (2)
Prescribed by law
Pursuing a legitimate aim
Necessary in democratic society
Proportionate
Prescribed by Law
There must be a basis in law for the restriction
The law must be accessible to the individual likely to be affected by it
The terms must be sufficiently precise
The law must not be arbitrary and incompatible with the ’rule of law’
Legitimate Aim; the interest of national security
Spycatcher case
Peter Wright worked for MI5. After retiring he wrote a book called Spycatcher, describing his work. This was in breach of
the Official Secrets Act 1911.
It was published in Australia and the US. The Attorney General then sought and received an interlocutory injunction
restraining publication of information obtained by Wright in June 1986. In July 1987 the Sunday Times published
extracts from the book two days before its publication in the US. The Attorney General sought and was given injunctions
to restrain further publication.
HoL: Upheld the Attorney General's appeal, finding that the Sunday Times publication was in breach of its duty of
confidence.
A duty of confidence precludes disclosure to others, and a third party (like a newspaper) with confidential information is
similarly bound by a duty if they know it is confidential.
This was true unless the confidential information was already known to the general public, or the duty to keep the
information secret was outweighed by a countervailing public interest in the information.
Official secrets
R v Shayler
S, a member of MI5, had provided journalists with 30 documents which he had obtained through his position and which
related to national intelligence and security issues.
He was prosecuted under the Official Secrets Act 1989. He argued that compatibility with Article 10 requires public
interest defense. This was rejected by the HoL – in particular because of the availability of internal complaint
mechanisms available to civil servants.
Legitimate Aim; territorial Integrity and public safety
Piermont v France
The applicant, a member of the European Parliament, took part in a banned anti-nuclear march in French Polynesia.
It was seen as a legitimate aim expelling him from the European Parliament as a result.
Surek v Turkey
