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1. What is included in the idea of expression that goes beyond speech?
Potentially any form of expression – such as dancing or acts of political protest.
2. What is meant by ‘prior restraint’ and what significance does it have in respect of protecting freedom of expression under Article 10?
A count injunction that prevents a publication from taking place. Injunctions clearly raise important issues because, unlike damages or criminal penalties, they prevent the information from being communicated and the “hearer” from knowing what was said. Prior restraint injunctions are not forbidden under the Convention but require stringent justification (e.g. in terms of the legitimate protection of confidential information).
3. What rights are protected by Article 10(1)?
A general right to freedom of expression and more specifically a right to hold opinions, impart and receive information.
4. Give examples of the ‘rights of others’ in the context of reasons for restricting freedom of expression which may be compatible with Article 10.
E.g. property rights (including intellectual property), rights not to be the subject of racial hatred, and rights to fair elections.
5. Identify a case in which the importance of the media is recognised and give the reasons for that importance.
Lingens v Austria, the media has a crucial role as a “watchdog” of the constitution – most people receive their knowledge and understanding of the world through the media. The media must take their duties to inform seriously just as they should accept that they have responsibilities, for example, over not inciting violence.
6. What is the general approach of the ECtHR to domestic bans on films etc. on the grounds that they are obscene?
Generally, the ECtHR allows a wide margin of appreciation on these issues.
7. In Observer and Guardian v UK (the Spycatcher case, discussed earlier) which part of the injunctions in issue were upheld as being compatible with Article 10?
Those which retained the injunction after the publication in the book in the USA – i.e. after confidentiality was lost and hence the injunction was disproportionate.
8. What approach is taken by the ECtHR regarding restrictions, in domestic law, on expenditure on advertisements, pamphlets, etc. during elections?
The ECtHR does allow a wide margin of appreciation on these matters but is intent on preserving a minimum “essence” of free expression.
9. On what grounds might speech be considered so worthless that it is outside the protection of Article 10?
When it is based on attested falsehood (e.g. holocaust denial). Speech which aims to undermine the basic values inherent in the Convention can also be unprotected using Article 17.
10. In relation to ‘hate speech’ - is there a contradiction between Article 10(1) and Article 10(2) in the approach of both the ECtHR and the UK courts?
There is at least a potential contradiction. The ECtHR has frequently claimed that Article 10(1) protects expression which ‘offends, shocks or disturbs’. Article 10(2) allows proportionate and lawful interferences with expression for, inter alia, protecting the rights of others. Various non-enumerated rights have been upheld which seem to suggest, in areas such as race, religion and sexual orientation, there is a right not be offended. This is because the offensiveness is believed to be a vehicle for hatred. The Swedish case Vejdeland v Sweden is a good example.