How Free Is Our Freedom Of Expression?

Andy McHugh

8th March 2019

Freedom of expression is fundamental to our rights as human beings and is essential for democracy to flourish. There are obvious examples where this statement might be seen as controversial, but this makes freedom of expression all the more important. Article 10 of the ECHR protects individuals’ rights to hold opinions, receive information and communicate it to others.

However, it also does something else. It holds powerful people and organisations to account. It exposes hypocrisy of trusted public figures and institutions. It highlights new ways of understanding what has been seen as “true” for decades. Not only that, it also allows for creativity in artistic expression, which is a fundamental part of the human condition. Without the ability to freely say what you think (within certain parameters) there would not be any protection for those who wish to challenge unjust power structures or bring the rich and powerful to justice. In addition, it provides protection for people to share their political opinions, so long as they do not conflict with fundamental rights of others, such as the right to be free from discrimination (Article 14)

The exercise of freedom of expression must also, however, take into account a balancing of conflicting interests. This means that although newspapers, for example might be allowed to expose celebrity secrets, it must also balance rights to privacy (Article 8), or not interfere with the right to a fair trial (Article 6). Artists should be free to create art that inspires the viewer, listeners, etc. However, they must be careful not to incite hatred with what they have created, as that would not be protected under Article 10.

Below are some important examples of cases that demonstrate how Article 10 is applied in the courts and which show how different rights and freedoms have been balanced against each other.

Norwood v UK (2004)

D was a supporter of the far-right British National Party. He decided to display a poster in his window, containing an image of the burning Twin Towers and a message saying “Islam out of Britain - Protect the British People”. He maintained that it was his right, under Article 10 to freely express this opinion. However, the ECtHR disagreed, arguing that since the message was aimed at all Muslims, that this was an attack on a religious group and so should not be allowed to be seen as protected free speech.

Handyside v UK (1976)

D was a book publisher who had bought the rights to a controversial book called The Little Red Schoolbook. The book contained advice to school children, which promoted drugs, sex and challenging authority. When police found out that he intended to publish the book, his house and office were raided and all copies of the books were confiscated. He was then prosecuted and fined. Under the law at the time, he was not protected by Article 10, as it was deemed that the corruption of health and morals was in conflict with his individual freedom of expression, with the Court deciding against publication on these grounds. Despite this however, public morality has changed over the years and the book was finally published in 2014.

Campbell v MGN Ltd (2004)

Naomi Campbell, a supermodel, was photographed outside a drugs rehabilitation clinic, after public denials that she was a recovering drug addict. She brought a case against Mirror Group Newspapers Ltd, claiming that freedom of expression should not be allowed, as in this instance it conflicted with her right to privacy, under Article 8. The House of Lords, at appeal, decided in favour of Campbell, arguing that her expectation of a right to privacy (even in a public place) did outweigh freedom of expression in this case.

Exam Tip:

Make sure that when you are answering exam questions, that you draw parallels between these cases and the facts of the scenarios you will be given.

Andy McHugh

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