Chapter 14 Guidance on answering the exam questions

1. A court order restrains the media from publishing a story. What general questions will an appeal court judge have to ask him or herself when deciding whether the order is compatible with the Convention?

• The question considers general matters that relate to the “qualified rights” (Articles 8-11).
• Firstly, the judge will have to consider whether a matter protected by the Convention is in issue – in the case whether the publication is an “expression” protected by Article 10(1).
• Secondly, if so, the judge must consider whether there has been or would be an interference with the expression in so far as it is protected by Article 10.
• Thirdly, if so, the issue then turns to justification. I.e. would this interference by a court order be justified under the terms of Article 10(2)?
• This involves considering whether such a court order could be obtained by a lawful procedure – i.e. in which the rules authorising such orders are accessible, foreseeable and non-arbitrary.
• If so, the judge would have to consider whether the purpose of the order was in the list of purposes in Article 10(2). Often such orders are sought in order to protect the right to private life (Article 8) of a person affected by the story the press wish to publish.
• If this is the case the judge would have to decide whether stopping the story is “necessary in a democratic society”. This means whether, in the circumstances, it meets a pressing social need and, in the individual circumstances, is proportionate. This last factor normally requires the judge to consider whether a fair balance of interests has been achieved.

2. Discuss the reasons for some rights being ‘qualified rights’ and compare this with the reasons for other rights being non-qualified.

• This question looks for general understanding for the reasons behind qualified rights.
• Begin by identifying the qualified rights and distinguish them from absolute rights.
• Qualified rights are those in respect of freedoms whose exercise can, and indeed, ought, to be restricted in certain situations.
• Give examples in respect of private and family life, manifestations of belief, expression, association and assembly. In all, it is easy to think of purposes for which the exercise of such freedoms ought to be limited. Examples could include, to protect the rights of others (such as the right to a fair trial) or to protect national security. The main problem is that we are likely to disagree about the significance of these reasons. In the end we will leave them to a court to decide and under the ECHR this is done in the terms of the text of the second paragraphs of Articles 8-11.