When Should Freedom Of Expression Be Restricted?

Andy McHugh

19th February 2019

Article 10, the right to freedom of expression, states that "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.”

The existence of a free press is crucial to a functioning democracy. For this reason, it is often known as the Fourth Estate, alongside the more traditional branches of the Legislature, Executive and Judiciary. Without the ability to hold all three of these branches to account, there would be a real risk of tyranny and corruption. This can be seen in other countries, where members of the government have an influence over, or even control the news, enabling them to cover up news items that would genuinely be in the public interest

But when should the freedom of the press be restricted? As I’ve mentioned in other articles on the right to privacy (see here and here), the right to privacy is vital and should be protected unless there is a serious enough reason to restrict it. The question is though, where should the line be drawn?

Let’s look at some cases that illustrate the extent to which freedom of expression should be restricted, regarding the press.

Observer and The Guardian v UK (1991)

A book called Spycatcher was written by a former MI5 officer called Peter Wright, who alleged in it that MI5 had been acting unlawfully for years. The Government took out a court order to prevent excerpts from the book being published by the newspapers, in the interests of national security. However, once the book had been published, the newspapers argues that the court order should no longer be in force, as the material was already in the public domain, therefore the newspapers reporting on it would no longer constitute a breach of national security. The ECtHR agreed and the publishing ban was lifted.

Animal Defenders International v UK (2013)

An animal rights group produced an advert promoting animal rights, to be broadcast on television. However, it was banned under the Communications Act 2003, as political advertising is severely restricted (and prohibited in most cases). the ECtHR decided against Animal Defenders International, who had argued that the ban breached Article 10. The Court argued that rather than it being a breach of freedom of expression, it actually encouraged it, by levelling the playing field for all political causes, regardless of their financial strength.

ES v Austria (2018)

An individual was fined by an Austrian court, when she made claims in a seminar that the fifty six year old prophet Mohamed had married one of his wives when she was only six and had sexual intercourse with her by the age of nine. The defendant argued that restricting her freedom of expression on this largely academic matter was a breach of Article 10, particularly when the claim about the prophet was based on extensive research. However, the ECtHR reasoned that making such a statement, could "stir up prejudice and put at risk religious peace”. Therefore it was within the margin of appreciation for the Austrian court to impose the fine, in the interests of protecting the religious freedoms of others and also in the interests of national security. It should be noted, however, that this decision has been widely criticised as anti-blasphemy laws have often been the basis for attacks on freedom of expression in countries around the world. You can read more on the case here.

Exam Tip:

When discussing Article 10, the right to freedom of expression, you should pay particular attention to Article 10 (2), where it states the reasons why restrictions might reasonably be imposed. These include the reasons given in the above cases, but they also include: the protection of health or morals, the protection of the reputation of others ad preventing the disclosure of information given in confidence, amongst other reasons.

Andy McHugh

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