19 terms

Freedom of Expression

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R v Home Secretary ex parte Simms
Explanation for the instrumental importance of freedom of expression.
a) self-fulfillment (part of individuality/autonomy)
b) truth as thoughts fight to get accepted
c) it is the life blood of democracy, free flow informs political debate
R v Shayler
For democracy to exist there must be involvement of the people (forming opinions). There must be publicity of the issues and errors at hand. Publicity is a powerful "disinfectant".
Redmond-Bate v DDP
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative. Freedom only to speek inoffensively is not worth having.
Handyside v UK
Freedom of speech is essential to the foundations of democracy and applies equally to the favorable and the unfavorable which shocks, offends or disturbs the state.
Lingens v Austria
Freedom of the press in particular affords the public one of the best means of discovering and forming opinions on the political leaders. Generally, free political debate is the core of a democratic society (key to the ECHR).
McCartan Turkington Breen v Times
Small minority take part in the actual decisions of a democracy and so it is important that the press be allowed to cover these decisions/makers in order to alert the general public.
Sunday Times v UK
The law must be adequately accessible, so that the citizen has an indication. A norm cannot be regarded as "law" unless it is formulated with sufficient precision so that consequences of actions are foreseeable.
Official Secrets Act 1989 s1-5
Brought into replace the 1911 Act which was outdated. It applies to current and former members of intelligence services protecting information obtained by virtue of the job and relating to "security/intelligence". There are then further less restrictive rules over public servants/third parties against "damaging" disclosures.
Official Secrets Act 1989 s7
Permission to disclose intelligence information.
R v Shayler (2)
Prosecution of an MI6 employee who released information to the public (some fantasy/conspiracy and some factual). Argued there should be a public interest defence read into the Act or it is disproportionate restriction of Article 10. Held, it could not be read in as was clear and as there is not a blanket ban (authorisation procedure in place) it is not disproportionate.
Critics: "chilling effect" of prosecution and the authorisation process (e.g. going to superior to release corruption above info). Balance between importance of security and indirectly protecting illegality.
Coco v AN Clark
Information must have "necessary quality of confidence" and have been imparted in circumstances importing an obligation of confidence and have been used in an unauthorised way to the detriment of the communicator.
Reynolds
While this is pre-HRA it was considered by the court that the freedom of expression was the rule and that anything restricting this was seen as an exception requiring justification (despite the fact the right to privacy should equally be the rule it was treated in this was as well).
Venables v NGN
(Pre-HRA) The court said that in order to enjoy the right of privacy you must prove it is necessary in a democratic society (not automatically protected, which it should be as a right of its own).
Mills v Mail Group Newspapers
(Pre-HRA) The right to privacy was allowed if it could be proved that the release of the information would cause harm (again a justification required even though it should be a right by virtue).
Douglas v Hello!
(Early case against the heirarchy form) Neither right was seen to trump the other automatically as there are of equal status and must be balanced and considered.
Cream Holdings v Banerjee
There is now a presumptive equality between privacy and expression and each case is considered on the facts.
Re S
No hierarchy between privacy and expression, instead a proportionality test - are the restrictions on either disproportionate. If there cannot be a balance struck then the court must rule it incompatible.
Campbell v MGN
"No automatic priority of rights" and included health and rehab as a privacy issue which engaged Article 8.
Von Hannover v Germany
Battle of Princess Caroline of Monaco to stop photos of her private life across newspapers. The court weighed the two rights and acknowledge the case sensitive nature of the test. Factors included whether the press were "democratic watchdog" or gossip mongers. Here it was tittle-tattle about someone with no public power and so the value to debate was minimal and found in favor of the princess.