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FREEDOM OF EXSPRESSIONFREEDOM OF EXSPRESSION
ArticleArticle 1010
Zlata ĐurđevićZlata Đurđević[email protected]@pravo.hr
Criminal Law Aspect of the European Convention on Human Rights
ImportanceImportance Right to Freedom of ExpressionRight to Freedom of Expression
Individual right– basic condition for the development of every person as free and
social human being
Political right– free and democratic society
– freedom of press – a constitutive part of democracy as a political system
– vital importance for pluralistic democracies
Handyside v. UK, 1976 The Court’s supervisory functions oblige it to pay the utmost attention to the
principles characterizing a "democratic society". Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.
Criminal Law Aspect of the European Convention on Human Rights
Universal Human RightUniversal Human Right
International documents on human rights
– 1st Session of the UN General Assembly - Resolution 59(1), 1946
• “Freedom of information is a fundamental human right and is the
touchstone ot all the freedoms to which the UN is consacrated."
– Art 19 of the Universal Declaration of Human Rights (1948)
– Art 10 of the European Convention on Human Rights (1950)
– Art 19. International Covenant on Civil and Political Rights (1966)
– Art 13. The American Convention on Human Rights (1969)
– Art 9. The African Charter on Human and Peoples’ Rights (1981)
– The Charter of Fundamental Rights of the EU (2000)
• Art 11. Freedom of expression and information
• Art 42. Right of access to documents
Common European Constitutional tradition
Criminal Law Aspect of the European Convention on Human Rights
The FThe Firstirst Amendment to the US Amendment to the US Constitution Constitution ((17911791))
Amendment 1
Freedom of Religion, Press, Expression
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
Criminal Law Aspect of the European Convention on Human Rights
Freedom of Freedom of EExpressionxpression Article 10Article 10
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.
Criminal Law Aspect of the European Convention on Human Rights
Three aspects of Three aspects of the right to freedom of expressionthe right to freedom of expression
freedom to hold opinions
freedom to impart information and ideas
freedom to receive / seek information and ideas
Criminal Law Aspect of the European Convention on Human Rights
Freedom to Hold OpinionsFreedom to Hold Opinions
content – the process of the human internal life
prerequisite to other rights protected by Art 10
absolute right
negative freedom
prohibited behavior
– the state should not try to indoctrinate their citizens
– prohibition of unequal treatment due to one’s opinion
– the promotion of one-sided information
– obligation to establish pluralism in the media space
Criminal Law Aspect of the European Convention on Human Rights
Freedom Freedom to to IImpart mpart IInformation nformation and and IIdeasdeas
key political freedom
positive but also negative expression
– Handyside v. UK, 1976
”It is applicable not only to "information" or "ideas" that are favorably 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.
Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society”
protection of content + all forms and ways of expression
Criminal Law Aspect of the European Convention on Human Rights
Forms and Ways of ExpressionForms and Ways of Expression
WORDS
PICTURES
EXPRESSION
IMAGES
ACTIONS
DRESS
PRINTED DOCUMENTS
RADIO BROADCASTS
PAINTINGS
FILMS
ELECTRONIC INFORMATION SYSTEMS
SUBSTANCE
FORM
+ FREEDOM NOT TO SPEAK
Criminal Law Aspect of the European Convention on Human Rights
Three forms of expressionThree forms of expression
Political
Artistic
Commercial
Criminal Law Aspect of the European Convention on Human Rights
Political ExpressionPolitical Expression
central place in the democratic society
for public – freedom of political debate and press is method for forming opinion on ideas and behavior of politicians
discussion on the issues of public interest, political debate, election campaign and criticism of the state
a free criticism of the government is protected
the politicians have to be tolerant to harsh criticism
the highest degree of protection of the freedom of expression of offending and exaggerated critical statements
Criminal Law Aspect of the European Convention on Human Rights
Freedom of Press and MediaFreedom of Press and Media
not expressly mentioned
special protection under Art. 10 – watchdogs of democracy
crucial role in informing public and creating public political debate
journalist freedom covers a degree of exaggeration, or even provocation
opinions, critics or speculation, especially in political arena, even founded on the facts that are not true can be protected
right of the journalists to publish rumors, allegations and gossips
it would be unacceptable for a journalist to be debarred from expressing critical value judgments unless s/he could prove their truth
Criminal Law Aspect of the European Convention on Human Rights
Facts and Value JudgmentsFacts and Value Judgments Lingens v. Austria, 1986Lingens v. Austria, 1986
difference between facts and value judgments
FACTS - existence can be proved
VALUE JUDGEMENTS - truth is not susceptible to proof
o prohibition of truth proof - defense of good faith
o related mostly to the cases involving media and politics
o elements taken into account
o legitimate purpose of a publication
o public concern
o efforts to verify the facts
o sufficient factual basis
Criminal Law Aspect of the European Convention on Human Rights
Freedom of the PressFreedom of the PressCase lawCase law
Lingens v. Austria, 1986
press as a political watchdog
Thorgeir Thorgeirson v. Iceland, 1992
matters of public concern
Jersild v. Denmark, 1994; Thoma v. Luxembourg, 2001
dissemination of statements made by other persons
Goodwin v. the United Kingdom, 1996
protection of journalistic sources
Criminal Law Aspect of the European Convention on Human Rights
Freedom Freedom to receiveto receive information information and ideasand ideas
other side of the coin of the democratic pluralism
communication
two independent right – in correlation
refers to individuals and to the whole public
the right of public to receive information through media of public concern
to be adequately informed
– without censorship, several sources of information
freedom of press – instrument
right to gather information
right to seek information
Criminal Law Aspect of the European Convention on Human Rights
Expression outside the protection Expression outside the protection of Art 10 para. 1 ECHRof Art 10 para. 1 ECHR
The Court has excluded– racist speech
– promotion of Nazi ideology
– incitement to hatred and racial discrimination
“contrary to the text and spirit of the Convention" Theory of the Paradox Tolerance
– an absolute tolerance may lead to tolerating ideas promoting intolerance, and the latter could then destroy the tolerance
interference of the state would be justified – Art. 10/2 Art. 17 -Prohibition of abuse of rights
– Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation
to a greater extent than is provided for in the Convention.
Criminal Law Aspect of the European Convention on Human Rights
Conflict with other Rights - Conflict with other Rights - LimitationsLimitations
Art 10/2
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.
Criminal Law Aspect of the European Convention on Human Rights
1. Exercise
• only the exercise can be limited, not the content
2. Duties and responsibilities
• civil service: • particular categories of information
• secrecy examined periodically
• specific categories of civil servants
• temporary
3. Formalities, conditions, restrictions or penalties Censorship - most dangerous form of interference Licensing of journalists, prior authorization Criminal convictions Civil damage Confiscation or seizure of means Prohibition of advertising - commercial expression
States enjoy wider margin of appreciation (Markt Intern Verlag GmbH and Klaus Beermann v. Germany, 1989)
Order to reveal journalistic sources (Goodwin v. UK, 1979) Search of newspaper or broadcasting premises
Criminal Law Aspect of the European Convention on Human Rights
Limitation to the right Limitation to the right to freedom of expression to freedom of expression
In accordance with Law
Legitimate aim
Necessary in the democratic society
– pressing social need
– proportionate
Criminal Law Aspect of the European Convention on Human Rights
Legitimate aimLegitimate aim
a) national security, territorial integrity or public safety
b) the prevention of disorder or crime
c) the protection of health or morals
d) the protection of the reputation or rights of others
e) preventing the disclosure of information received in
confidence
f) maintaining the authority and impartiality of the judiciary
Criminal Law Aspect of the European Convention on Human Rights
Court’s approach to Art. 10 = Art. 8Court’s approach to Art. 10 = Art. 8
1. Does the issue fall within the scope of Article 10?
2. Was there an interference with the right?
3. Was the interference in accordance with the law?
4. Did the interference pursue a legitimate aim?
5. Was it necessary in a democratic society and proportionate, taking into account the margin of appreciation?
Criminal Law Aspect of the European Convention on Human Rights
THANK YOU FOR YOUR THANK YOU FOR YOUR
PATIANCE AND ACTIVE PATIANCE AND ACTIVE
PARTICIPATION!PARTICIPATION!