Freedom of Expression
Case law under European Convention on Human Rights
Sally Burnheim
Freedom of expression constitutes one of
the essential foundations of a [democratic] society, one of the basic
conditions for its progress and for the development of every man. Subject
to paragraph 2 of Article 10, it is applicable not only to 'information'
or 'ideas' that are favourably received or regarded as inoffensive,
but also to those that offend, shock or disturb the state or any sector
of the population. Such are the demands of that pluralism, tolerance
and broadmindedness without which there is no democratic society."
- Handyside v. UK(1)
The right to freedom of expression is probably the most
universally accepted human right. Certainly, it has been the subject
of considerable case law under the European Convention of Human Rights.
Beginning with the Handyside case, the European Court has repeatedly
underscored the fundamental importance of freedom of expression as a
central pillar of democracy.
The opening sentence of the Handyside passage, quoted
above, indicates the two underlying reasons why freedom of expression
is considered to be essential. Firstly, it is central to the functioning
of a democratic society - political representatives can only understand
and represent the views of their constituents through an open, two-way
process of airing views, opinions and facts. Secondly, a person can
only achieve self-fulfilment and their full human potential through
being able to freely communicate their feelings, opinions and ideas.
Through its casework, the European Court of Human Rights
has established the range and means of free expression protected under
the European Convention - including political, artistic and commercial
expression through the written and spoken word, television and radio,
film and art.
The Court has strongly established the importance of
the media's role in being able to report freely on matters of public
interest. As affirmed in the Handyside passage, freedom of expression
extends to unfavourable information or ideas, as well as those that
are popular or inoffensive.
However, with the phrase "subject to paragraph
2 of Article 10", the Handyside quotation also indicates that the
right is not absolute. Free expression often impacts on the rights and
interests of others - for example, it may damage another person's reputation,
prejudice a fair trial or incite racial hatred. Therefore, the Court
has sought to balance the right to freedom of expression with the state's
legitimate need to restrict it in certain circumstances. In some instances,
notably on issues of morality, it has granted states a large measure
of discretion in determining that need.
The Scope of Article 10
The European Court has done much to interpret freedom of expression
as guaranteed by Article 10 of the European Convention on Human Rights.
Article 10(1) of the Convention states that "everyone has the right
to freedom of expression". This includes the right to "receive
and impart information without interference by public authority and
regardless of frontiers".
However, in order for states to prevent expression which
may be harmful or infringe other's rights, Article 10(2) allows specific
limitations on the right to freedom of expression which are "prescribed
by law" and "necessary in a democratic society". These
include such restrictions or penalties as may be needed to safeguard
national security, protect public health and morals, prevent crime,
or maintain the authority and independence of the judiciary. Extreme
examples of harmful expression may include such things as violent or
child pornography and incitement to racial violence.
In comparison with other Convention with a similar structure,
the European Commission and Court has been less concerned with the definition
of freedom of expression, but rather with states' justification for
interference. States must show that any restrictions were lawful, that
there was a pressing social need for the interference, and that they
were proportional to the interest served.
The Court's main concern has been to strike a balance
between protecting freedom of expression and protecting the rights and
interests of others. It has allowed states a margin of appreciation
on the basis that they are in a better position to determine whether
a restriction is necessary in the light of local circumstances, especially
with regard to the 'protection of morals'. This need may differ from
state to state - even between democratic states - and may be constantly
changing. However, the Court has also made it clear that states do not
have free reign - any restriction must be interpreted narrowly and the
Court maintains a supervisory role to monitor and scrutinise the restrictions
imposed by states.
The development of case law
Several distinct categories of expression have emerged through the case
law under the European Convention on Human Rights. In line with the
concept that freedom of expression is essential in a democratic society,
the Court has shown greater preference for political expression, followed
by artistic expression, and lastly commercial expression. This article
focus mainly on political and artistic expression.
Political expression
A key ruling on political expression is found in Lingens Vs Austria
(1986), in which the Court imported a concept from the US Supreme Court
that politicians must expect and tolerate greater public scrutiny and
criticism than average citizens. It stressed the media's crucial role
in reporting matters of public interest. Freedom of the press provided
the public with "one of the best means of discovering and forming
an opinion of the ideas and attitudes of political leaders". The
Court stated:
"More generally, freedom of political debate is
at the very core of the concept of a democratic society which prevails
throughout the Convention. The limits of acceptable criticism are accordingly
wider as regards a politician as such than as regards a private individual."
In both Lingens and a later case, Oberschlick Vs Austria
(1991), the Court made it clear that freedom of expression was not limited
to verifiable, factual data. In other words, it was not 'necessary in
a democratic society' for journalists to prove the truth of their opinions
and value judgements about political figures, as these were impossible
to prove anyway.
Contempt of court
In several cases, the Court has balanced the right to freedom of expression
with the administration of justice, and weighed in favour of the former.
For example, in Sunday Times Vs UK (1979), the Court stressed the media's
role in reporting matters which the public has a right to know, saying:
"The thalidomide disaster was a matter of undisputed
public concern… Article 10 guarantees not only the freedom of the press
to inform the public, but also the right of the public to be properly
informed…
The question of where responsibility for a tragedy
of this kind actually lies is also a matter of public interest… [T]he
facts of the case…did not cease to be a matter of public interest merely
because they formed the background to pending litigation. By bringing
to light certain facts, the [Sunday Times] article might have served
as a brake on speculative and unenlightened discussion."
On the issue of the state's margin of appreciation,
the Court recalled its Handyside decision, which allowed variations
between states on the need to restrict free expression for the 'protection
of morals'. It said that states are generally in a better position to
decide on such matters. However:
"Precisely the same cannot be said of the far more
objective notion of the 'authority' of the judiciary. The domestic law
and practice of the Contracting States reveal a fairly substantial measure
of common ground in this area".
Therefore, the Court ruled that, even though the case
involved sensitive matters before a court, the ban on publishing the
articles did not correspond to a social need so pressing that it outweighed
the public interest in freedom of expression.
The Sunday Times case was also significant for its consideration
of the notion that a restriction was "prescribed by law".
In the UK, contempt of court is a common law concept which aims to protect
the administration of justice. The Sunday Times argued that the law
of contempt was inherently uncertain. However, the Court determined
that the crucial factor was not whether the law was written or unwritten
but whether it was clear enough for citizens to know with reasonable
certainty the likely consequences of a particular action. It found that
the British law on contempt of court met that standard. However, 'the
Sunday Times test' does not only ask whether a law exists in the state
concerned, but whether it complies with the requirements of Article
10(2).In Goodwin Vs UK (1996) - another contempt of court case - the
Court endorsed the freedom not to speak, i.e. the fundamental right
of journalists not to disclose the identity of confidential sources
of information, stating:
"Protection of journalistic sources is one of the
basic conditions for press freedom… Without such protection, sources
may be deterred from assisting the press in informing the public on
matters of public interest. As a result, the vital public watchdog role
of the press may be undermined and the ability of the press to provide
accurate and reliable information may be adversely affected. Having
regard to the importance of protection of journalistic sources for press
freedom in a democratic society and the potentially chilling effect
an order of disclosure has on the exercise of that freedom, such a measure
cannot be compatible with Article 10 of the Convention unless it is
justified by an overriding requirement in the public interest."
Both the Sunday Times and Goodwin cases concerned the
issue of 'prior restraint' preventing the media from publishing sensitive
information. However, it was not until the Spycatcher cases -involving
suppression of media reports on Peter Wright's book about the secret
service - that the European Court directly addressed the threat to press
freedom posed by prior restraints:
"The dangers inherent in prior restraints are such
that they call for the most careful scrutiny on the part of the Court.
This is especially so as far as the press is concerned, for news is
a perishable commodity and to delay its publication, even for a short
period, may well deprive it of all its value and interest."
In the first Spycatcher case, involving the Observer
and Guardian newspapers, the Court made a controversial distinction
between two time periods - before and after the book's publication in
the US. For the first period, it ruled by a narrow margin (14 votes
to 10) that the injunctions against the newspapers were justified because
of a risk that the material was prejudicial to the British secret service.
For the second period, however, the Court ruled unanimously that Article
10 had been violated since the government's aim of protecting confidentiality
was no longer relevant as the information had entered the public domain:
"Continuation of the restrictions after July 1987
prevented the newspapers from exercising their right and duty to purvey
information, already available, on a matter of legitimate public concern."
The Court's conclusion that the UK authorities were
entitled to believe that, prior to US publication, the injunctions were
'necessary in a democratic society', was surprising. Earlier in the
same judgement, it had reiterated the principle first articulated in
the Sunday Times case that freedom of expression is not to be balanced
against other interests, but rather is "subject to a number of
exceptions which…must be narrowly interpreted".
Eleven judges disagreed with the Court's majority finding
that the injunctions were acceptable during the first period. Judge
De Meyer, joined by four others, stated that prior restraints, whether
temporary or permanent, should be upheld only when a state can demonstrate
concerns so serious that they 'threaten the life of the nation', and
even then, only to 'the extent strictly required'.
Another dissenting judge, Judge Martens, said that prior
restraint was undoubtedly "after censorship, the most serious form
of interference" with freedom of expression and the 'age of information'
meant that "information and ideas cannot be stopped at frontiers
any longer". His comment highlights the implications for freedom
of expression of advances in information technology. A state's decision
to ban information or ideas is likely to become increasingly ineffective,
especially with the rise of the Internet and satellite communication
for news reporting.
The Spycatcher case was significant in establishing
that neither maintaining the authority of the judiciary, nor national
security could justify measures to suppress material in the book once
it was published in the US. It was the first time that the Court had
rejected a government's claim that an interference in a fundamental
freedom was necessary to protect national security. The episode also
proved that the best way to promote interest in a book is to ban it.
Obscene and/or blasphemous publications
The Handyside case (1976) is significant for its assertion of the importance
of free expression, and also for its consideration of the concept that
state interference must be 'necessary in a democratic society'. The
Court ruled that the British Government's action in banning The Little
Red Schoolbook and charging its publisher with obscenity was not out
of proportion in a democratic society. Despite extending free expression
to information and ideas that "offend, shock or disturb",
the Court ruled in favour of the state, allowing it a margin of appreciation
to determine the measures needed to protect morals. The fact that the
book had been allowed in a majority of contracting states did not preclude
it being necessary to restrain its publication in a minority of states
if local circumstances required. The Court reasoned that it was not
possible to find "a uniform European conception of morals"
in the various laws of contracting states, and that "the requirements
of morals varies from time to time and from place to place".
Therefore "By reason of their direct and continuous
contact with the vital forces of their countries, state authorities
are in principle in a better position than the international judge to
give an opinion on the exact content of these requirements as well as
on the 'necessity' of a restriction or penalty intended to meet them…
It is for the national authorities to make the initial assessment of
the reality of the pressing social need implied by the notion of 'necessity'...".
However, the Court made clear that Article 10(2) did
not give states unlimited power of appreciation; the Court would make
the final decision on whether a restriction or penalty was permissible:
"The domestic margin of appreciation thus goes
hand in hand with a European supervision…[which] concerns both the aim
of the measure challenged and its necessity."
Similarly, in Müller Vs Switzerland (1988) - the
first case in which the European Court extended the right to freedom
of expression to artistic expression - the Court determined that it
may be necessary for a state to restrict free expression in order to
protect vulnerable citizens, especially children. In the absence of
a uniform approach to morality among member states, the issue was not
whether the Court agreed with the conviction, but whether the action
was reasonable. The Court ruled that the state was entitled to regard
the paintings as morally pernicious and thus had not violated Article
10.
The Court seemed to undermine this reasoning in Otto-Preminger
Institute Vs Austria (1994), in which it also found in favour of the
state. However, unlike in the Müller case, the Institute had restricted
the showing of a 'blasphemous' film to paying adults above 17 years
of age. There was little risk that children would chance to see the
film as it was to be screened late at night. Therefore, the Institute
had taken precautions which seemingly precluded the need for the state
to interfere 'for the protection of morals'. Despite stating that people
with religious beliefs have to tolerate criticism and denial by others,
the Court gave the state a very wide of margin of appreciation, accepting
that its action was necessary in order to keep the peace. In contrast,
the Commission had said that "very stringent reasons" were
needed to justify the seizure of a film - "which excludes any chance
to discuss its message" - and that these reasons were lacking.
Similarly, the Court deferred to the state's margin
of appreciation in Wingrove Vs UK (1997)(48), finding that the state's
refusal to provide an official classification for an allegedly blasphemous
film was not a violation of Article 10.
Hate speech
The delicate balance between freedom of the press and its impact on
the rights of others was weighed by the Court in Jersild Vs Denmark
(1994). The Court acknowledged that the racist remarks for which the
Greenjackets were convicted "were more than insulting to members
of the targeted groups and did not enjoy the protection of Article 10",
and that the Danish Government had acted to protect its minorities against
racial discrimination. It also noted the potential impact of the medium,
since "it is commonly acknowledged that the audio-visual media
have often a much more immediate and powerful effect than the print
media". However, the Court found that the penalties imposed on
the media in this case were not necessary in a democratic society for
the protection of the rights of others:
"The punishment of a journalist for assisting in
the dissemination of statements made by another person in an interview
would seriously hamper the contribution of the press to discussion of
matters of public interest and should not be envisaged unless there
are particularly strong reasons for doing so."
In the Jersild case, the Court took into account the
intended audience of the message in determining whether state interference
is justified. Unlike the Handyside case, in which the messages of The
Little Red Schoolbook were aimed primarily at children, the Greenjackets
item was part of a serious news programme directed at a well-informed
audience, who clearly required less protection. With the exception of
the Otto-Preminger case, the Court has shown unwillingness to accept
interference with the communication of ideas and information to consenting
adult consumers.
Concluding remarks
In keeping with its affirmation that freedom of expression is "one
of the essential foundations of a [democratic] society", the Court
has clearly shown a preference for political expression. This can be
seen in its rulings in favour of political speech, largely through the
media, when it has been balanced against other compelling interests,
such as the administration of justice, confidence in national security
services, and the protection of the rights or reputation of others.
In matters involving artistic expression - especially that which has
raised suggestions of obscenity or blasphemy - the Court has allowed
states a greater margin of appreciation to determine the restrictions
necessary for the protection of morals.
Sally Burnheim is MA student of Institute of
Commonwealth Studies, University of London.
