Freedom of Expression

Traditional 'freedom of expression' in England rested upon the principle that anyone is free to do what they want, unless the behaviour is specifically banned. Liberty is one sense, but a fragile one. The problem is that one person's use of the freedom may interfere with someone else's rights.

So throughout English history freedom of expression has been limited. The criminal law has been used to prevent obscenity; revelation of state secrets; sedition; inciting troops to mutiny; and in everyday life threatening, insulting or abusive words and behaviour are banned. Incitement to racial and religious hatred will bring criminal sanctions. There is criminal liability for contempt of court.

If someone's rights have been interfered with, there are remedies available in the civil courts - through actions for the torts of defamation and breach of confidence.

The European Convention on Human Rights, Article 10 states:-

1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

This is not an absolute right - Section 2 makes that clear - but the right is also balanced against the rights of others set out elsewhere in the ECHR. Article 8 sets out the right to privacy - "Everyone has the right to respect for his private and family life, his home and his correspondence."

There is some useful caselaw on balancing these rights, including -

Thompson and Venables v News Group Newspapers
Campbell v Mirror Group Newspapers
Murray (by his Litigation Friends) v Express Newspapers plc

There's an excellent resource here on current privacy law.

ECHR - Key Rights & Restrictions

What are the key rights in the European Convention on Human Rights? - and when can these be restricted? The answers can be found in the Convention itself

But it can be easy to lose sight of the key points - so I have prepared a hand-out for my Open University W201 students, which reformats the text to highlight what the rights cover - and when States can interfere with them. This is a revision document - so if it is of help to you - or you have friends studying Constitutional; or  Administrative Law (UK) or Human Rights Law - please feel free to use it, or share this post (Facebook; Twitter; Email - or whatever)

Article 8 – Right to respect for private and family life 

1.    Everyone has the right to respect for his private and family life, his home and his correspondence.

2.    There shall be no interference by a public authority with the exercise of this right except 

1. such as is in accordance with the law and 
2. is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9 – Freedom of thought, conscience and religion 

1.    Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.    Freedom to manifest one's religion or beliefs shall be subject only 

1. to such limitations as are prescribed by law and 
2. are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression 

1.    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.    The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to 

1. such formalities, conditions, restrictions or penalties as are prescribed by law and 
2. are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 – Freedom of assembly and association 

1.    Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.    No restrictions shall be placed on the exercise of these rights other than 

1. such as are prescribed by law and 
2. are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

·        Do not forget the principle of proportionality – R (on the application of Daly) v Home Secretary [2001] 2 AC 532

o   Is the legislative objective sufficiently important to justify limiting a fundamental right?

o   Are the measures taken rationally connected to this objective?

o   Are the measures taken no more than is necessary to accomplish this objective?

Party Political Broadcasts

Everyone's favourites - I write in jest. I know that some people find them uninteresting (and I haven't seen one in years, when I'm campaigning I don't have time - and when I'm taking time off, I want to relax!). I do prefer the limits in the UK, even I was bored rigid by the constant repetition (and downright misleading content) of US political ads when I was in Virginia during last year's elections.

Of course political advertising raises issues of freedom of expression. The House of Commons Library has just produced a paper on Party Political Broadcasts - and sets out the legal framework - and the issue of compatibilty with the European Convention on Human Rights.

So whether you are a political geek, or a law student - you might find it useful to download the paper.

Freedom of Expression

Traditional 'freedom of expression' in England rested upon the principle that anyone is free to do what they want, unless the behaviour is specifically banned. Liberty is one sense, but a fragile one. The problem is that one person's use of the freedom may interfere with someone else's rights.

So throughout English history freedom of expression has been limited. The criminal law has been used to prevent obscenity; revelation of state secrets; sedition; inciting troops to mutiny; and in everyday life threatening, insulting or abusive words and behaviour are banned. Incitement to racial and religious hatred will bring criminal sanctions. There is criminal liability for contempt of court.

If someone's rights have been interfered with, there are remedies available in the civil courts - through actions for the torts of defamation and breach of confidence.

The European Convention on Human Rights, Article 10 states:-

1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

This is not an absolute right - Section 2 makes that clear - but the right is also balanced against the rights of others set out elsewhere in the ECHR. Article 8 sets out the right to privacy - "Everyone has the right to respect for his private and family life, his home and his correspondence."

There is some useful caselaw on balancing these rights, including -

Thompson and Venables v News Group Newspapers
Campbell v Mirror Group Newspapers
Murray (by his Litigation Friends) v Express Newspapers plc
There's an excellent resource here on current privacy law.

Aylesbury & Liberty

Since February I have been visiting Aylesbury three times a week to teach law at Aylesbury College. Some of mstudents took their exam on Friday, and the rest of the exams take place this week. So, the number of visits will fall off for a while.

It is appropriate that my final law sessions should occur this week in Aylesbury. The news has been dominated by the issue of 'Freedom of Speech', as a well known TV personality and journalist faces the possibility of jail for Contempt of Court for tweeting the name of a football player who gained an injunction stopping anyone mentioning the fact of his adultery, or even that he had gained such an injunction. A Scottish newspaper published a photo of the player, with his eyes blocked out, but soccer fans (I'm not one) wouldn't have much difficulty in recognising the player. The editor may be liable. Thousands refused to be gagged yesterday by tweeting the name.

What has this to do with Aylesbury? In the 18th Century the MP, and resident of the town was a man called John Wilkes. He went to jail for publishing material which upset the rich, famous and powerful. He was one of the heroes of the struggle for freedom of speech in England (as well as a friend of liberty for America). His former home still stands in Aylesbury.

Another hero of liberty, who found that a majority of Judges were not prepared to support him (The Ship Money case), has his statue in the centre of Aylesbury - John Hampden - who was also the local MP for a short time (he represented nearby Wendover for a longer period).

Sad to say, our judges have not been the protectors and promoters of free speech in England. So it is again. That's why the right to trial by jury needs to be protected. There have been times when juries of ordinary citizens have refused to uphold attempts to enforce laws which do not have the consent of the people. Of course if any action is taken against journalists, tweeters or Twitter itself, there will not be a jury. Contempt of Court cases - which can lead to 2 years in jail - are exclusively dealt with by the judiciary ( the third branch of Government).