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Human Rights Session 9 - Freedom of expression Human rights 9 - There is no speech nor language, where their voice is not heard: Freedom of expression.

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Presentation on theme: "Human Rights Session 9 - Freedom of expression Human rights 9 - There is no speech nor language, where their voice is not heard: Freedom of expression."— Presentation transcript:

1 Human Rights Session 9 - Freedom of expression Human rights 9 - There is no speech nor language, where their voice is not heard: Freedom of expression Pavel Molek

2 Human Rights Session 9 - Freedom of expression History „I disapprove of what you say, but I will defend to the death your right to say it.“ „I disapprove of what you say, but I will defend to the death your right to say it.“ „Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.“ „Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.“ Why it was number one? Why it was number one?

3 Human Rights Session 9 - Freedom of expression Instruments UDHR Article 19 (!): „Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. “ UDHR Article 19 (!): „Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. “

4 Human Rights Session 9 - Freedom of expression Instruments: ICCPR: ICCPR: „Article Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.“

5 Human Rights Session 9 - Freedom of expression Instruments: ECHR: ECHR: „Article 10 Freedom of expression 1. 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. - outfashioned 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.“

6 Human Rights Session 9 - Freedom of expression Instruments: EU EU Charter: EU Charter: „Article 11 Freedom of expression and information 1. 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. 2. The freedom and pluralism of the media shall be respected.“ Is there any difference between EU and ECHR?

7 Human Rights Session 9 - Freedom of expression Instruments: EU How can be freedom of expression in scope of EU law? How can be freedom of expression in scope of EU law? Today the scope of Article 51 of the Charter: Today the scope of Article 51 of the Charter: „Field of application 1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. 2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.“ Case C-260/89 ERT Case C-260/89 ERT

8 Human Rights Session 9 - Freedom of expression Instruments: EU Case C-260/89 ERT [1991] ECR I-2925: Case C-260/89 ERT [1991] ECR I-2925: ERT, a Greek radio station and television company, enjoyed exclusive broadcasting rights under a Greek statute. It sought an injunction against an information company and Mr. Kouvelas, the Mayor of Thessaloniki, who had set up a rival television station. The respondent argued that ERT’s exclusive rights infringed the free movement and competition provisions of EC law. The Greek government invoked Articles 45 and 55 EC which allowed it to impose restrictions for reasons of public policy. Mayor of Thessaloniki counter-argued that these could not be invoked as the conduct violated Article 10 ECHR relating to freedom of expression.

9 Human Rights Session 9 - Freedom of expression Instruments: EU „41. With regard to Article 10 of the European Convention on Human Rights, … it must first be pointed out that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories … The European Convention on Human Rights has special significance in that respect (…). 42. As the Court has held (…), it has no power to examine the compatibility with the European Convention on Human Rights of national rules which do not fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the European Convention on Human Rights.

10 Human Rights Session 9 - Freedom of expression Instruments: EU 43. In particular, where a Member State relies on the combined provisions of Articles 56 and 66 in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 56 and 66 only if they are compatible with the fundamental rights the observance of which is ensured by the Court. 44. It follows that in such a case it is for the national court, and if necessary, the Court of Justice to appraise the application of those provisions having regard to all the rules of Community law, including freedom of expression, as embodied in Article 10 of the European Convention on Human Rights, as a general principle of law the observance of which is ensured by the Court.“ ECJ: C-159/90 - The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others ECJ: C-159/90 - The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others

11 Human Rights Session 9 - Freedom of expression Structure Freedom to hold opinions (a contrario newspeak and crimethink) Freedom to hold opinions (a contrario newspeak and crimethink) to receive information and ideas (Open Door Counselling v. Ireland 1992 or ECJ - Grogan) to receive information and ideas (Open Door Counselling v. Ireland 1992 or ECJ - Grogan) to impart information and ideas (including dead authors…?) to impart information and ideas (including dead authors…?) + to request information (Guerra and others v. Italy 1992 in scope of Art. 8 to get information about chemical factory)? + to request information (Guerra and others v. Italy 1992 in scope of Art. 8 to get information about chemical factory)?

12 Human Rights Session 9 - Freedom of expression Forms of expression What forms can you think about? What forms can you think about? Forms in ECHR Forms in ECHR Written and spoken word (freedom of speech), particularly newspaper (tradition) Observer and Guardian v. U.K. (1991) Written and spoken word (freedom of speech), particularly newspaper (tradition) Observer and Guardian v. U.K. (1991) TV programmes: Hodgson v. U.K. (1987) TV programmes: Hodgson v. U.K. (1987) Radio broadcasting: Autronic AG v. Switzerland (1990) Radio broadcasting: Autronic AG v. Switzerland (1990) Movies: Wingrove v. U.K. (1996) Movies: Wingrove v. U.K. (1996) Paintings: Müller v. Switzerland (1988) Paintings: Müller v. Switzerland (1988) Clothes: Stevens v. U.K. (1986) Clothes: Stevens v. U.K. (1986) Nonverbal acts of protest: Steel v. U.K. (1998) Nonverbal acts of protest: Steel v. U.K. (1998) Symbols: Chorherr v Austria (1993) Symbols: Chorherr v Austria (1993)

13 Human Rights Session 9 - Freedom of expression Forms of expression Vajnai v. Hungary (2006) – what was it about? ECHR as the lowest common denominator? Why he did not succeeded at ECJ?

14 Human Rights Session 9 - Freedom of expression Content of expression Which one is on the top? Artistic (Wingrowe, Otto-Preminger-Institute v. Austria 1994) v. commercial (Markt Intern and Beermann v. Germany 1990) v. political (Lingens v. Austria 1986 – central concept of democratic society; Castells v. Spain 1992)…? Which one is on the top? Artistic (Wingrowe, Otto-Preminger-Institute v. Austria 1994) v. commercial (Markt Intern and Beermann v. Germany 1990) v. political (Lingens v. Austria 1986 – central concept of democratic society; Castells v. Spain 1992)…?

15 Human Rights Session 9 - Freedom of expression Limitations 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law as are prescribed by law and are necessary in a democratic society, and are necessary in a democratic society, in the interests in the interests of national security, territorial integrity or public safety, of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the prevention of disorder or crime, for the protection of health or morals, for the protection of health or morals, for the protection of the reputation or rights of others, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. or for maintaining the authority and impartiality of the judiciary.

16 Human Rights Session 9 - Freedom of expression Limitations Prescribed by law: Prescribed by law: Silver v. U.K – prisoners; Silver v. U.K – prisoners; Sunday Times v. U.K – Thalidomin, only House of Lords case law Sunday Times v. U.K – Thalidomin, only House of Lords case law

17 Human Rights Session 9 - Freedom of expression Limitations "necessary in a democratic society“ "necessary in a democratic society“ Explicitelly or implicitelly including proportionality test: Explicitelly or implicitelly including proportionality test: Is there a legitimate purpose (pressing social need like in Sunday Times v. U.K Thalidomin)? Is there a legitimate purpose (pressing social need like in Sunday Times v. U.K Thalidomin)? Necessity (is there alternative measure less intrusive and equally effective?) Necessity (is there alternative measure less intrusive and equally effective?) Balancing (costs and gains) Balancing (costs and gains)

18 Human Rights Session 9 - Freedom of expression Limitations national security, territorial integrity or public safety national security, territorial integrity or public safety Spycatcher: Observer and Guardian v U. K (not proportional), Spycatcher: Observer and Guardian v U. K (not proportional), Arrowsmith v U.K (pacifist in Ulster – proportional punishment) Arrowsmith v U.K (pacifist in Ulster – proportional punishment) prevention of disorder or crime prevention of disorder or crime Janowski v Poland 1999 (critique of policemen „when on duty“ making order in riots - „hlupki“) Janowski v Poland 1999 (critique of policemen „when on duty“ making order in riots - „hlupki“) the protection of health or morals the protection of health or morals Almost unlimited, is there a „European morality“? Only Open Door Counselling v Ireland 1992 was too much for ECHR (unproportional) Almost unlimited, is there a „European morality“? Only Open Door Counselling v Ireland 1992 was too much for ECHR (unproportional) Otto-Preminger Institute v. Austria (1994), Wingrove Otto-Preminger Institute v. Austria (1994), Wingrove Handyside v. U.K The Little Red Schoolbook (O.K.) Handyside v. U.K The Little Red Schoolbook (O.K.)

19 Human Rights Session 9 - Freedom of expression Limitations the protection of the reputation or rights of others – most often, best for balancing the protection of the reputation or rights of others – most often, best for balancing Lingens v. Austria 1986: "In truth Mr. Kreisky’s behaviour cannot be criticised on rational grounds but only on irrational grounds: it is immoral, undignified“ (+ Wiesenthal + Peter) Lingens v. Austria 1986: "In truth Mr. Kreisky’s behaviour cannot be criticised on rational grounds but only on irrational grounds: it is immoral, undignified“ (+ Wiesenthal + Peter) „The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 enables the reputation of others - that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.“ (42) „The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 enables the reputation of others - that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.“ (42)

20 Human Rights Session 9 - Freedom of expression Limitations Lingens v. Austria 1986 Lingens v. Austria 1986 „In this connection, the Court has to recall that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Handyside judgment…).“ (46) „In this connection, the Court has to recall that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Handyside judgment…).“ (46) „In the Court’s view, a careful distinction needs to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof. The Court notes in this connection that the facts on which Mr. Lingens founded his value-judgment were undisputed, as was also his good faith.“ (41) „In the Court’s view, a careful distinction needs to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof. The Court notes in this connection that the facts on which Mr. Lingens founded his value-judgment were undisputed, as was also his good faith.“ (41) Facts and value-judgments Facts and value-judgments

21 Human Rights Session 9 - Freedom of expression Limitations preventing the disclosure of information received in confidence preventing the disclosure of information received in confidence Goodwin v. U.K – release your information source (unproportional) Goodwin v. U.K – release your information source (unproportional) maintaining the authority and impartiality of the judiciary maintaining the authority and impartiality of the judiciary Sunday Times v. U.K – Thalidomin („trial by newspaper“) Sunday Times v. U.K – Thalidomin („trial by newspaper“) Schöpfer v. Switzerland 1998 (punishment of advocate criticizing penal trial) Schöpfer v. Switzerland 1998 (punishment of advocate criticizing penal trial) De Haes and Gijsels v. Belgium 1997 (critique of judges in pedophile case) De Haes and Gijsels v. Belgium 1997 (critique of judges in pedophile case) Who, by whom, when, where, how? Who, by whom, when, where, how?

22 Human Rights Session 9 - Freedom of expression Limitations in steps Back to Vajnai v. Hungary (2006) Back to Vajnai v. Hungary (2006) 1. Are we in scope of Art. 10? 1. Are we in scope of Art. 10? 2. Is there a violation? 2. Is there a violation? 3. Was it "prescribed by law„? 3. Was it "prescribed by law„? 4. Did the interference pursued a legitimate aim? (which one?) 4. Did the interference pursued a legitimate aim? (which one?) 5. Was the interference "necessary in a democratic society“? 5. Was the interference "necessary in a democratic society“?

23 Human Rights Session 9 - Freedom of expression Limitations in steps „57. The Court is of course aware that the systematic terror applied to consolidate Communist rule in several countries, including Hungary, remains a serious scar in the mind and heart of Europe. It accepts that the display of a symbol which was ubiquitous during the reign of those regimes may create uneasiness amongst past victims and their relatives, who may rightly find such displays disrespectful. It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression. Given the well-known assurances which the Republic of Hungary provided legally, morally and materially to the victims of Communism, such emotions cannot be regarded as rational fears. In the Court's view, a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgement. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler's veto. „57. The Court is of course aware that the systematic terror applied to consolidate Communist rule in several countries, including Hungary, remains a serious scar in the mind and heart of Europe. It accepts that the display of a symbol which was ubiquitous during the reign of those regimes may create uneasiness amongst past victims and their relatives, who may rightly find such displays disrespectful. It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression. Given the well-known assurances which the Republic of Hungary provided legally, morally and materially to the victims of Communism, such emotions cannot be regarded as rational fears. In the Court's view, a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgement. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler's veto. 58. The foregoing considerations are sufficient to enable the Court to conclude that the applicant's conviction for the mere fact that he had worn a red star cannot be considered to have responded to a “pressing social need”. Furthermore, the measure with which his conduct was sanctioned, although relatively light, belongs to the criminal law sphere, entailing the most serious consequences. The Court does not consider that the sanction was proportionate to the legitimate aim pursued. It follows that the interference with the applicant's freedom of expression cannot be justified under Article 10 § 2 of the Convention.“ 58. The foregoing considerations are sufficient to enable the Court to conclude that the applicant's conviction for the mere fact that he had worn a red star cannot be considered to have responded to a “pressing social need”. Furthermore, the measure with which his conduct was sanctioned, although relatively light, belongs to the criminal law sphere, entailing the most serious consequences. The Court does not consider that the sanction was proportionate to the legitimate aim pursued. It follows that the interference with the applicant's freedom of expression cannot be justified under Article 10 § 2 of the Convention.“

24 Human Rights Session 9 - Freedom of expression Freedom of expression in horizontal relationship Connection with other rights: Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich Connection with other rights: Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich What was it about? What was it about? Which rights were in conflict and what was the solution of this conflict? Which rights were in conflict and what was the solution of this conflict? Which judgements were quoted and how were they used? Which judgements were quoted and how were they used? Freedom of expression and association on horizontal level (deja vu of Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (1978) Case 149/77: Direct effect here means horizontal effect…Who can discriminate? „39 IN FACT, SINCE ARTICLE 119 IS MANDATORY IN NATURE, THE PROHIBITION ON DISCRIMINATION BETWEEN MEN AND WOMEN APPLIES NOT ONLY TO THE ACTION OF PUBLIC AUTHORITIES, BUT ALSO EXTENDS TO ALL AGREEMENTS WHICH ARE INTENDED TO REGULATE PAID LABOUR COLLECTIVELY, AS WELL AS TO CONTRACTS BETWEEN INDIVIDUALS.“) Freedom of expression and association on horizontal level (deja vu of Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (1978) Case 149/77: Direct effect here means horizontal effect…Who can discriminate? „39 IN FACT, SINCE ARTICLE 119 IS MANDATORY IN NATURE, THE PROHIBITION ON DISCRIMINATION BETWEEN MEN AND WOMEN APPLIES NOT ONLY TO THE ACTION OF PUBLIC AUTHORITIES, BUT ALSO EXTENDS TO ALL AGREEMENTS WHICH ARE INTENDED TO REGULATE PAID LABOUR COLLECTIVELY, AS WELL AS TO CONTRACTS BETWEEN INDIVIDUALS.“)

25 Human Rights Session 9 - Freedom of expression Announcement For tommorrow: For tommorrow: Try to find as many arguments for and against death penalty as you can…. Try to find as many arguments for and against death penalty as you can….


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