Article 10: Freedom of Expression

Introduction

Article 10 of the European Convention on Human Rights provides:

"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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Freedom of expression is frequently described as one of the essential foundations of a democratic society. The ECtHR has consistently emphasised its importance, stating in Handyside v UK [1976] that it is "applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population."

Article 10 is a qualified right and can be restricted under Article 10(2), but any restriction must satisfy the three-stage test: prescribed by law, legitimate aim, and necessary in a democratic society.

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The Scope of Article 10

Article 10 protects a wide range of forms of expression:

Political Speech

Political expression receives the highest level of protection under Article 10. The ECtHR has repeatedly stated that there is little scope for restrictions on political speech in a democratic society. This includes:

• Criticism of government policies
• Criticism of politicians and public figures
• Campaign speech
• Parliamentary speech and debate

Lingens v Austria [1986]: A journalist published articles accusing the Austrian Chancellor of protecting former Nazis. He was convicted of criminal defamation. The ECtHR found a violation of Article 10, holding that the limits of acceptable criticism are wider as regards a politician than a private individual. Politicians "inevitably and knowingly lay themselves open to close scrutiny of their every word and deed by both journalists and the public at large."

Castells v Spain [1992]: A Spanish senator was convicted for publishing an article accusing the government of failing to investigate political murders in the Basque country. The ECtHR found a violation of Article 10, emphasising that "freedom of political debate is at the very core of the concept of a democratic society."

Press Freedom

The press plays a vital role in a democratic society as a "public watchdog." The ECtHR has stated that "not only does the press have the task of imparting such information and ideas [on matters of public interest]: the public also has a right to receive them" — Observer and Guardian v UK [1991].

Protection of press freedom includes:

• The right to publish information and opinions on matters of public interest
• The right to protect journalistic sources — Goodwin v UK [1996]
• Freedom from prior restraint (censorship before publication) — though this is not absolute

Artistic Expression

Artistic expression is also protected, though it may receive less protection than political speech, particularly in areas where morals are involved. In Müller v Switzerland [1988], the ECtHR upheld the conviction of an artist for exhibiting obscene paintings, applying a wide margin of appreciation on matters of morality.

Commercial Speech

Commercial expression (e.g., advertising) is protected by Article 10 but receives a lower level of protection than political or artistic speech. States have a wider margin of appreciation in regulating commercial speech.

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Key Case: Handyside v UK [1976]

Richard Handyside published The Little Red Schoolbook, a reference guide for schoolchildren that contained sections on sex, drugs, and authority. The book was seized and Handyside was convicted under the Obscene Publications Act 1959. He argued that this violated Article 10.

The ECtHR found no violation of Article 10. While the Court delivered its famous statement that freedom of expression extends to ideas that "offend, shock or disturb," it held that the UK had a wide margin of appreciation on matters of morality and that the restriction was "necessary in a democratic society" for the "protection of morals."

This case established two important principles:

1. Freedom of expression has broad scope — it protects offensive and controversial speech
2. The margin of appreciation — states have discretion, particularly on issues of morality where there is no European consensus

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Prior Restraint

Prior restraint (preventing publication before it occurs) is regarded as particularly dangerous to freedom of expression because it prevents information from reaching the public at all.

Sunday Times v UK [1979]

The Sunday Times sought to publish articles about the thalidomide drug scandal, which had caused severe birth defects. The Attorney General obtained an injunction preventing publication on the grounds that it would constitute contempt of court (because proceedings were ongoing). The ECtHR found a violation of Article 10, holding that the injunction was not "necessary in a democratic society."

The Court stated that the "dangers inherent in prior restraints are such that they call for the most careful scrutiny." While prior restraint is not absolutely prohibited, it requires particularly strong justification.

Observer and Guardian v UK [1991] ("Spycatcher")

The UK government obtained injunctions preventing publication of extracts from Spycatcher, the memoirs of a former MI5 officer. After the book was published abroad and widely available, the ECtHR found that the continued maintenance of the injunctions violated Article 10, as they no longer served the purpose of protecting national security.

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Balancing Article 10 with Article 8

When the right to freedom of expression (Article 10) conflicts with the right to respect for private life (Article 8), neither right takes automatic precedence. The court must conduct a balancing exercise, considering all the circumstances of the case.

Von Hannover v Germany [2004]

Princess Caroline of Monaco complained about photographs of her engaged in everyday activities (shopping, horse-riding, dining with friends) published in German magazines. The ECtHR held that publication violated her Article 8 rights because:

• She was not performing an official function at the time
• The photographs did not contribute to any debate of general interest
• The public interest in knowing about her private life was limited

The Court emphasised the distinction between reporting on matters of public interest and satisfying public curiosity.

Von Hannover v Germany (No 2) [2012]