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Lecture 17 - Freedom of Expression

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John McGarry

on 27 January 2014

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Transcript of Lecture 17 - Freedom of Expression

Freedom of expression - protected by Article 10 ECHR
“Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. … [I]t 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 the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”
(Handyside v United Kingdom (1976) 1 EHRR 737, para 49)
Also given particular protection by s 12 of the Human Rights Act 1998
Contempt of Court
Publications prejudicial to the public interest
Ss 1 & 2 of the Contempt of Court Act 1981
It will be a contempt if any publication creates a substantial risk that a trial will be seriously impeded or prejudiced
Proceedings must be active as defined by Schedule 1 of the Act
The offence is a strict liability offence
Section 3 Defence of innocent publication or distribution
Section 4 Contemporary reports of proceedings
Section 5 Discussion of public affairs
A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.
Attorney General v English [1983] 1 AC 116
Attorney-General v Random House Group Ltd [2009] EWHC 1727
Protection of journalists' sources
The court may order the source to be revealed using a Norwich Pharmacal Order - Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133
S 10 of the Contempt of Court Act 1981 attempts to give some protection to journalists' sources - the court should only order disclosure if it 'is necessary in the interests of justice or national security or for the prevention of disorder or crime.'
Possible difference of approach between the UK courts and the ECtHR, see:
X v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1 (HL) / Goodwin v United Kingdom (1996) 22 EHRR 123 (ECtHR)
Interbrew SA v Financial Times and Others [2002] EWCA Civ 274 / Financial Times Ltd and Others v The United Kingdom [2010] EMLR 21
Full transcript