Public Law II: Freedom of expression

Why do we need freedom of expression?

• Necessary in a democracy...but what is a democracy...?
• Democracy first emerged in Athens in the 5th century
• Democracy concerns equality as practical and moral basis of liberty amongst citizens
• Citizen participation in government
• Political decisions made via public deliberation
• The avoidance of communism and dictatorship
• Rosseau (1712-78) channeled ideas of greek democracy (past) and reinterpreted it for the present. 
• Rosseau took classical ideas of republican government of people for the people 'humans are both free, but everywhere they are in chains': freedom and equality
• Rosseau discussed how one may create a form of political and legal constitution that respects common good whilst maintaining liberty. A constitution that maximises individual liberty as a moral device, of which freedom of expression can be inserted in to aswell....
• Freedom of expression fosters acceptance of majority decsiions by the minorities
• Freedom of expression encourages debate and thus better policies
• Protected by legislation and convention: ECHR article 10, HRA 1998 section 3 and Universal Declaration of Human Rights

Definitions and explanations for freedom of expression: (Article 10 ECHR)

A. George Washington (1st president of the USA): 'If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter'

B. George Orwell: 'If liberty means anything at all, it means the right to tell people what they do not want to hear'

C. John Milton: 'Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties'

D. Eric Barendt (notable barrister and professor) 2005 in ‘Freedom of Speech’ 3 justifications for freedom of expression:1. Truth, 2. Self-fulfillment, 3. Democracy. Argues that freedom of expression is bolstered by Dicey's rule of law principle and 'If courts are trusted to guarantee free speech, to determine its scope and to decide when it may, exceptionally be limited in furtherance of other interests such as privacy and right to fair trial, there is no reason why they cannot be equally trusted to distinguish a measure which promotes free speech from one which improperly suppresses it.'

1. Handyside v UK 1979: Richard Handyside purchased British rights of "The Little Red Schoolbook" and published in UK after many other countries. Chapter on Pupils contained section concerning "Sex".Mag Court issued 2 summonses against Handyside for having in his possession obscene books for publication for gain. Ceased distribution of the book and advised bookshops but, by that time, some 17,000 copies were already in circulation. Handyside was found guilty of both offences and fined £25. His appeal was rejected. Application lodged to ECtHR in Strasbourg. Using margin of appreciation doctrine, the Court held by 13 votes to 1 that the interference in Handyside's freedom of expression was both defined by law, having a legitimate aim and necessary in a democratic society, thus there was no violation of Article 10 ECHR. However, Article 10 para 2 does not give contracting states unlimited power of appreciation and the domestic appreciation goes in hand with the european supervision but UK are better positioned to decide what is acceptable in the UK. 

• 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. Subject to Article 10 (2), 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'.

Human rights in the state of nature: indeterminacy in the resolution of the conflict between security and liberty. Lawrence Pacewicz, 2011

- ECtHR the ban was justified as ‘necessary in a democratic society… for the protection of morals’.Could it not equally be argued that the ban was not ‘necessary for the protection of morals’? One may feel that children could benefit from such material, a view which may place more faith in the importance of children determining their own morality and their capacity to do so. Perhaps some may object to state paternalism and feel that responsibility for protection should lie with parents. The abstract terminology of rights does not prescribe a solution. The concept ‘necessary in a democratic society’ is vacuous; to have any substance it must be followed with ‘because X, Y and Z, where “X, Y and Z ” are non-legal reasons. If the ECtHR does not fill this gap, its decision is not justified. If it does, it must do so with policy. The ECtHR seems to be at least somewhat aware of this lack of rational warrant in its appeal to the muddying doctrine of the ‘margin of appreciation’ as an explanation for the fact the book concerned circulated freely in other Member States. Indeed this fact renders the finding that the ban was ‘necessary in a democratic society’ literally incorrect, lest the ECtHR deem those other Member States not to be ‘democratic societies’. When the reason provided by human rights ‘runs out’ or contradicts itself, adjudication enters the realm of policy and ethics. This poses difficult questions for human rights adjudication which loses the claims to neutrality and knowledge which make it so appealing.Decision-makers, when facing the sort of questions encountered in human rights adjudication, should confine themselves to a pragmatic consideration of the real issues and dispel the cloud of false-knowledge rights create. Human rights law could adopt what Cohen calls a ‘functional’ approach and eradicate meaningless concepts.

- Case wrongly decided!!!!!!!!! 

2. Sunday Times v UK 1979, Judge Balladore Pallieri: Newspaper wrote articles discussing problems with pregnancies due to taking a drug thalidomide. Injunction sought because Sunday times 'interfering with adminstration of justice'. The European Court of Human Rights considered an application claiming that a High Court injunction infringed their right to freedom of expression guaranteed by the ECHR 1950 Art.10.Newspaper wrote that drug company were taking too long on to pay compensation. Injunction awarded and Times took the case to Strasbourg ECtHR. The injunction had been obtained at the instance of the Attorney General. He had successfully claimed that pending a trial concerning the drug "thalidomide" that it was contempt of court to publish one of the articles in a series aiming to assist possible claimants in respect of that trial. 

Held, there had been an interference with the applicants "freedom of expression" secured under Art.10 of the Convention and was neither justified nor necessary under Art.10(2) of the Convention which permits certain restrictions on freedom of expression prescribed by law as necessary in a democratic society. Also held in public interest to be properly informed especially as stagnant case for years and no inquiry! Found conditions under Article 10, para 2:

• 1. Prescribed by law: YES, contempt of court. 
• 2. Interest legitimate: YES, maintain authority of the court
• 3. Necessary in a democratic society: NO. Not necessary.  
• Violation of Art 10 FOUND by bare min of 9-11.Restriction was not justified by a 'pressing social need' and not necessary.

Personal opinion:

- case decided correctly

- matter of public policy: balancing exercise: public interest and freedom of expression far outweighs the need for protection of a drug company/contempt of court !!!! 

- Substantial risk of prejudice needs to be looked at carefully

- think of more and discuss...

- Lord Reid and Lord Diplock in case in House of Lords were wrong and ECtHR correct !!!!!

3. Lord Steyn in R v Secretary of State for Home Department, ex parte Simms: Case concerning prisoners wanting to discuss their 'injust convictions' but the prison tried to prevent them from doing so. 'Freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country'

Ways of curtailing FoE:

• 1. Prison (after expression)
• 2. Injunctions 
• 3. Sensorship (before expression)
• 4. Politically, socially, interlectually etc.
• 5. Not all statements deserve to be expresses i.e. racism, sexism, discrimination, abuse, false/defamatory, hate, violence, national security
• 6. Freedom of expression is only a RELATIVE right and NOT ABSOLUTE... proportionate only.
• 7. Parliamentary privilege is absolute i.e. MP's can say what they want and not fear sanction:

4. Observer & Guardian v UK 1991: Book written by former security agent bound by Official Secrets Act.Book published in Austrailia and papers wanted to publish extracts but injunction preventing them. Strasbourg held not necessary in dem soc as book already circulated!!!

5. A v UK 2002: MP Michael Stern referred to Mrs A as a 'neighbour from hell' in Parliament. The comment was in the public domain and circulated which gave rise to a huge hate crime campaign against Mrs A and she had to move. MP accused of being motivated by racism but as absolute privlege of MP's to say what they want, he couldn't be sanctioned and Mrs A argued contravention of Article 6 (right to fair trial) and Article 8 (right to respect for private and family life)! Went to ECtHR who found no violation of Article 6 (Right to fair trial). All of the judges held that Art.6 was applicable. Parliamentary immunity, embodied in Art.9 of the Bill of Rights 1689, acted as a bar that prevented the applicant from vindicating her legal rights before a court. The majority of the court then went on to balance the right to a fair trial against competing objectives. They concluded that the immunity existed to protect freedom of expression within Parliament and to maintain the separation of powers between the legislature and the judiciary. The restriction on the right to a fair trial was not disproportionate in light of these other legitimate objectives.

Some Statutes and Conventions: Protecting Freedom of Expression:

A. Bill of Rights 1689

B. Freedom of Information Act 2000 (journalists, can ask any question to any public authority

C. Human Rights Act 1998: section 3

D. ECHR- article 10 'everyone has the right to freedom of expression' para 2: subject to such formalities, conditions, restrictions or penalities as are prescribed by law, necessary in a democratic society, in the interests of: national security, territorial integrity/public safety, prevention of disorder or crime, protection of health/morals, protection of reputation or rights of others, preventing the disclosure of information in confidence, maintaining the authority/impartiality of the judiciary. (exhaustive list for certainty). NB: article 10 purports to protect freedom of expression yet gives in para 2, exhaustive list of exceptions/limitations showing it is NOT an absolute right!!!!

Some Statutes Restricting Freedom of Expression:

E. Public Order Act 1986 (hate speech, racial etc)

F. Official Secrets Act 1989 (Thatcher government and very broad)

G. Terrorism Act 2006 (VERY broad and criticised for being broad) 

H. Contempt of Court Act 1981: followed after Sunday Times v UK case in 1979. Prevents the publication of material which would predjudice a fair trial and interfere with good administration of justice only when publication creates a substantial risk that court of justice will be prejudiced. Partly restricts and protects freedom of expression. 

6. Derbyshire CC v Times Newspaper 1993: House of Lords, Lord Keith, Browne-Wilkinson, Griffiths, Woolf: pre HRA: CC wanted to sue for defamation as allegations of improper financial transactions prejudice to pension. Court held that a local authority cannot sue for libel defamation as have to be able to criticise public bodies in a democracy and thus freedom of expression is paramount. Balacing exercise of interests. 

7. Reynolds v Times Newspaper 2001: House of Lords: post HRA: Reynolds was former PM for Ireland, allegations by Times paper that he had lied to other ministers but can he sue? Times wanted qualified privelege to report political matters which would be a new development in the law. Held that Times argument and reform was invalid as enough gurantees in common law. Although Times arguments not accepted, FoE was arguably enhanced! 

8. Leveson Inquiry: report on accountability of anyone in positions of power. PCC (Press Complaints Commission created in 1991 and argued not up to the job of upholding Code of Practice of the press following allegations of phone hacking etc). Journalists were publishing illegally obtained information with little control. Huge inquiry set up by Sir Brian Leveson as to investigating the need to regulate the press. Competing interests: Article 10 freedom of expression, right to privacy Article 8 of ECHR!!! Democracy?

Recommended: Newspapers should continue to be self-regulated - and the government should have no power over what they publish. There had to be a new press standards body created by the industry, with a new code of conduct. That body should be backed by legislation, which would create a means to ensure the regulation was independent and effective. The arrangement would provide the public with confidence that their complaints would be seriously dealt with - and ensure the press are protected from interference.

Future: PM has already held that legislation is not required which is contrary to the recommendations. Evident split between the government. As it stands, it seems that the press are able to govern themselves still and will continue to in order to promote freedom of expression through illegal activity. An inquiry costing millions of pounds that will fail to make a difference to monitor sufficiently freedom of expression. Political party favor will trump sufficiently monitoring freedom of expression. A judge was required to monitor this inquiry which shows the inability to monitor freedom of express by our government

9. Mid-Staffordshire NHS trust inquiry: Set up by Health Secretary Andrew Lansley. The trust has been at the centre of the major Stafford Hospital scandal in which many press reports estimated that because of the substandard care between 400 and 1200 more patients died between 2005 and 2008 than would be expected for the type of hospital, though in fact such ‘excess’ death statistics did not appear in the final Healthcare Commission report.The 2010 independent investigation report recommended that the regulator, Monitor, de-authorise the Foundation Trust status. In June 2010, the new government announced that a full public inquiry is expected to report in March 2011. The final report was published on 6 February 2013, making 290 recommendation. The £13 million review of what went wrong will suggest hospitals that cover up mistakes by doctors and poor treatment of patients should face fines and possible closure.

Are inquiries always set up for freedom of expression or to merely attempt to 'adhere to accountability'...?

Internet/Social Media impact on Freedom of Expression:

10. Paul Chambers v DPP: Twitter message signaling a bomb threat due to the closure of an airport as a joke. Menacing character with mens rea needed. Freedom of expression limitations? Proportionality balancing exercise. Conviction sqaushed as no menacing character founded. A proportionality test required by the courts to balance security with public interest/freedom of expression/human rights. 

11. Preece v Wetherspoon: Facebook comment about an incidient in the workplace. Employment tribunal as was dismissed for writing the comment. Court found was not unfairly dismissed. Proportionality test in which the courts must balance freedom of expression with employment policies and right to privacy.