Art. 10 : Free Expression

Everyone has the right to freedom of expression including 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.

A qualified right subject to exceptions as are prescribed by law and as necessary in a democracy; and to the interests of national security, territorial integrity or public safety, crime or disorder prevention; protection of public health, moral protections or rights of others; or to protect information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Open society issues such as the right to be heard, originate in English common law and as such influenced the European Convention on Human Rights rather than the reverse. Both UK and Strasbourg case-law strongly support freedom to “offend, shock or disturb”, with three broad types of protected expression: political (including all issues of broad public interest); media depending on their “salience”, i.e. their power; and artistic.

Since the support for freedom of expression is strong, most cases in both courts are less about supporting this right and more about limiting it and balancing the freedom of expression of one person against other rights of another, e.g. against another person’s Right to Privacy.

  1. Limiting Nation of Islam’s free expression in the interests of public order:
    The right to “offend, shock or disturb” extends to criticism of other ethnic groups, provided other elements of a democratic society such as public order are unaffected. For example, Mr. Farrakan was leader of a U.S. based Islamic organisation, Nation of Islam, and applied for a visa to speak at their U.K. base. In Autumn 2000, Jack Straw, Home Secretary, ordered a widespread consultation and then excluded Mr. Farrakan, not to silence him – he could circulate his views e.g. on the Internet  –  but because his criticisms of Jews were well known, and his presence could cause a breakdown in public order.

But was the Home Secretary’s decision proportionate or over-controlling? The Appeal Court found that where immigration is concerned, the Strasbourg court tends to give Interior Ministers (Home Secretaries) a wide margin of discretion. Also bearing in mind his other publication possibilities, the court ruled that the Home Secretary had the right to decide that Mr. Farrakhan’s actual presence in the UK would be a threat to public order.

On contrast between the “reasonableness test” of state decisions and ECHR proportionality, see 2. Qualified rights

2.Transport for London:  rights of different groups, taking into account the power (salience) of the medium of expression
Transport for London (T for L) carried an advertisement on the outside of its buses funded by Stonewall: SOME PEOPLE ARE GAY. GET OVER IT! However, they refused a responding advert by the religious group: Anglican Mainstream which read: NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT! T for L is a public company owned by the City of London and its decisions are subject to the Human Rights Act. When Anglican Mainstream appealed, the High Court ruled that the gay community was more vulnerable than Anglican Mainstream so that T for L were correctly balancing the rights of the weaker against those of the stronger, also bearing in mind that the advertisements on London buses are visually powerful (salient).

  1. Binyam Mohamed and the public’s right to know
    The public right to know about government activity is a central part of a free media’s role in a healthy democracy, particularly when that information involves the possibility of state violation or complicity in violation of one of the Convention rights that have no opt out: i.e. those to life; freedom from torture; or from slavery.

Binyam Mohamed, an Ethiopian refugee to the U.K., was captured and handed to the CIA in Afghanistan shortly after 9/11. He was interviewed by MI5 agents before being secretly flown (“rendered”) to Morocco for torture including genital mutilation, en route to Guantanamo where torture was also practised. A U.S. security  document,  available at the Appeal Court hearing, reported activity that “could readily be contended to be at the very least cruel, inhuman and degrading by the US authorities”: Appeal-Court-Binyam

This significant challenge to the government was based Article 10’s public right of information. The government released the information after the US authorities had released it in connection with another case, then brought in the Justice and Security Act (2012) to more efficiently control information. After a tough fight in Parliament, then Home Secretary Theresa May accepted that in a case involving national security, the judges rather than ministers should have the final say about which evidence the Court hears under the new “Closed Material Procedures” court regime.
Supreme Court hearing not yet in Bailii database.
ECHR Exceptions Table

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