BAHRIA UNIVERSITY ISLAMABAD CAMPUS (BUIC)

Law Department

ASSIGNMENT of HUMAN RIGHTS LAW

ARTICLE 10 FREEOM OF EXPRESSION
SUBMITTED BY MEHTAB GUL JUNEJO
(01-177181-028)
LLB-IV

SUBMITTED TO MA’AM RIFFAT BUTT

DATED DECEMBER, 2nd 2019

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Contents
INTRODUCTION:-............................................................................................................................................................4
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)................................................................................................5
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)....................................................................... 5
FREEDOM OF EXPRESSION AS A VALUE IN COMMON LAW:-........................................................................................ 6
ARTICLE 10 GENERAL ISSUES:-....................................................................................................................................... 7
Importance: -..............................................................................................................................................................7
General structure: -.................................................................................................................................................... 8
Role of the court:-...................................................................................................................................................... 9
1) Court of Human Rights: -................................................................................................................................9
2) UK Courts: -.................................................................................................................................................... 9
3) Positive Duties or Obligations: -..................................................................................................................... 9
4) Prior Restraint:-............................................................................................................................................ 10
Freedom of Expression and section 12 HRA 1998:-.....................................................................................................10
The Scope of Article 10(1):-..........................................................................................................................................12
Freedom to receive information:-............................................................................................................................13
Convention: -............................................................................................................................................................13
Human Rights Act 1998:-..........................................................................................................................................14
Freedom of the media:-........................................................................................................................................... 14
Convention........................................................................................................................................................... 14
Responsible journalism:-.......................................................................................................................................... 15
Protection of sources:-.............................................................................................................................................15
Restrictions under article 10(2):-................................................................................................................................. 15
Duties and responsibilities:-.....................................................................................................................................15
Prescribed by law:-...................................................................................................................................................16
Expression on political and public issues:-...................................................................................................................16
Broad definition of political speech:-.......................................................................................................................16
General principles:-.................................................................................................................................................. 17
Restrictions on political speech:-............................................................................................................................. 17
Political expression and the political process:-............................................................................................................ 18
Politicians and the political process......................................................................................................................... 18
Parliamentary privilege............................................................................................................................................ 18
Parliamentary privilege........................................................................................................................................ 18
Election restrictions..................................................................................................................................................18
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 Political advertising.................................................................................................................................................. 19
The limits to political speech: hate speech, racism, incitement:-................................................................................19
Political outcomes which would violate human rights............................................................................................ 19
Advocacy of political violence.................................................................................................................................. 19
Hate speech..............................................................................................................................................................20
Human rights Act 1998.............................................................................................................................................20
Artistic expression:-......................................................................................................................................................20
Commercial expression:-..............................................................................................................................................22
BIBLIOGRAPHY..............................................................................................................................................................23

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 ARTICLE 10 FREEDOM OF EXPRESSION

INTRODUCTION:-
Freedom of expression is broadly known as the fundamental right in a liberal, democratic

society. There are, however, important and legitimate reasons why freedom of expression may need to be

restricted in order to protect other important rights and freedoms such as the right to a fair trial or to

private life. Article 10 establishes in its first paragraph a general right to freedom of expression and then,

in its second paragraph, identifies the only basis upon which the right can be restricted. The necessity for

such restrictions must be established by the state and must be subject to scrutiny by the courts.1

The right to speak freely of discourse is depicted as the opportunity to express assessments and thoughts

without restrictions or preventions. It's ones freedom to talk without being controlled or constrained.

Opportunity of articulation which is an equivalent word of the right to speak freely of discourse, is utilized

to portray ones freedom to verbal discourse as well as opportunity of any demonstration of getting or

sending data or sentiments, without considering the mechanism of correspondence utilized. For all intents

and purposes, this privilege to the right to speak freely of discourse isn't plainly clarified in numerous

nations and accordingly it's normally dependent upon constraints by certain types of government.

The privilege to the right to speak freely of discourse or opportunity or opportunity of articulation is

perceived in the UDHR (all-inclusive Declaration of Human Rights), as a human right. It's additionally

perceived in the ICCPR (International Covenant on Civil and Political Rights), where it's characterized as

"the privilege to hold assessments without obstruction" (Vile 2007). Everybody on the planet is qualified

for the privilege of communicating oneself uninhibitedly. The right to speak freely of discourse is

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Human Rights Law, Howard Davis
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perceived by numerous human rights associations in Africa, Europe and America. The cutting edge

thought of the right to speak freely of discourse came up gradually during the European Enlightenment

however the idea is likewise found in human rights reports of the early man. The 1689 Bill of rights in

England permitted the right to speak freely of discourse in parliament while the privileges of resident and

man announcement which came up during the French upheaval of 1789, especially recognized the ability

to speak freely as an unavoidable human right (Finan 2008 37).2

UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

Article 19

Everybody has the option to opportunity of sentiment and articulation; this privilege

incorporates opportunity to hold assessments without obstruction and to look for, get and grant data and

thoughts through any media and despite boondocks.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

Article 19

 Everybody will reserve the option to hold conclusions without obstruction.

 Everybody will reserve the option to opportunity of articulation; this privilege will incorporate

opportunity to look for, get and give data and thoughts of different sorts, paying little respect to

boondocks, either orally, in composing or in print, as craftsmanship, or through some other media

of his decision.

The activity of the rights accommodated n section 3 of this article conveys with it exceptional obligations

what's more, obligations. It might in this manner be dependent upon specific confinements, yet these will

just be for example, are given by law and are vital:

(a) For regard of the privilege or notorieties of others;

2
https://www.ukessays.com/
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(b) For the assurance of national security or of open request, or of general wellbeing or ethics.3

FREEDOM OF EXPRESSION AS A VALUE IN COMMON LAW:-

Freedom of expression is a well-recognized principle of the common law (the basic judge-

made law of England and Wales) which had been established before, and independently of, the Human

Rights Act 1998 (HRA 1998). British judges have, on a number of occasions, insisted that there is no

incompatibility between the degrees of protection afforded expression under the common law with the

protection under article 10; there is simply a difference of approach. The following quote, from Lord Goff

in one of the Spy catcher cases of the 1980’s express the point.

I can see no consistency between English law on this subject and article 10 (ECHR). This is

scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this

country perhaps as long as, if not longer than, it has existed in any other country in the world. The only

difference is that, whereas article 10 of the convention, in accordance with its avowed purpose, proceeds

to state a fundamental right and then to qualify it, we in this country (where everybody is free to do

anything, subject only to the provisions of the law) proceed rather on an assumption of freedom of speech,

and turn to our law to discover the established exceptions to it.

Case: - General vs Guardian Newspapers and others

The importance of freedom of expression in common law continues to be asserted by the judges.

It has been recognized by law lords as attaining ‘the status of a constitutional right with attendant high

normative force’

Case: - McCartan Turkington Vs Times Newspapers)

Under the law of England and Wales issues of freedom of speech can arise, for example:

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https://en.unesco.org/
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  In ‘defamation’ proceedings where a person seeks damages for false statements made which

damage their reputation.

 To protect confidential information through an action for ‘breach of confidence’.

 To protect intellectual property rights such as copy rights and trademarks.

 In the criminal law, such as public order offences which may have been committed by political

demonstrators.

Some of these issues will involve the HRA 1998 directly, for example where the interpretation of an

Act of Parliament is involved or where it is alleged that the police or some other public authority have

failed to respect freedom of expression. Where, like defamation or breach of confidence, it is

essentially a matter of law, freedom of expression is still relevant, either because the courts are public

authorities required to act compatibly with convention rights or, irrespective of the HRA 1998,

because freedom of expression is a long-standing value in common law. As Lord Steyn said, in

Reynolds Vs Times Newspapers Ltd freedom of expression is the rule and regulation of speech is the

exception requiring justification’4.

ARTICLE 10 GENERAL ISSUES:-

Importance: - From one of its earliest cases, Handyside Vs United Kingdom (1976) 1 EHRR 737,

onwards the court of Human Rights has continuously recognized the importance of the right to

freedom of expression within the convention scheme.

Freedom of Expression is:

Necessary for individual self-fulfillment,

An essential foundation of a democratic society. A democratic society, characterized by pluralism,

tolerance and broadmindedness, is a necessary condition in which human rights can be protected and

justice and peace can flourish.

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Human Rights Law, Howard Davis
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 General structure: - Despite the importance of freedom of expression, the text of article 10 makes it

clear that there is no absolute right to freedom of expression. Freedom of expression, like the freedoms

in article 8, 9 and 11, can be restricted if certain conditions are present. The nature and scope of

freedom of expression is established in the first paragraph article 10 (1), and the exclusive conditions

under which that freedom can be restricted are identified in the second paragraph article 10(2). Thus

the approach of the court of Human Rights (or any national court) to freedom of expression cases is to

ask to itself:

 Is an act of speech, writing or some other type of expression is issue in the case? If it is, then;

 Is it a type of expression that is protected under the terms of the first paragraph of article 10; If

it is then;

 Has the speech, etc., been restricted (usually this will have been by a court or by a state agency

such as the police); If so, then;

 Has the state shown that the restriction is justified in terms of article 10(2); i.e., that it was

imposed ‘by law’ that it aimed to achieve one of the purposes listed in paragraph 2 and that it

was ‘necessary in a democratic society’ in the sense of being a proportionate means of meeting

a pressing social need?

On the basis of this approach, a court’s job involves balancing freedom of expression with the arguments

for restricting expression. The latter may be in terms of the collective good that restricting speech

promotes or the rights of individuals that restriction protects. In this balancing exercise the court of

Human Rights gives greatest weight to political speech, broadly defined as speech involving the

discussion of public and social affairs; only the most compelling reasons will justify restrictions. Other

forms of speech, such as commercial or artistic speech, are still within the scope of the protection of the

first paragraph, but restrictions are more easily brought within the terms of the second paragraph.

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Role of the court:-
1) Court of Human Rights: - The court of Human Rights has the final say on whether any restriction

on freedom of expression is compatible with article 10. National laws permitting restriction must

be narrowly constructed and government actions be subject to close scrutiny. The court has

summarized its role in this way.

The court’s task, in exercising supervisory jurisdiction, is not to take the place of the

competent national courts but rather to review under article 10 the decisions they delivered in the exercise

of the power of the appreciation. This does not mean that the supervision is limited to ascertaining

whether the respondent state exercised its discretion reasonably, carefully and in good faith; what the

court has to do is to look at the interference complained of in the light of the case as a whole and

determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced

by the national authorities to justify it are relevant and sufficient.

Depending on the issue, the court of Human Rights allows a margin of appreciation to states

(wide on moral questions, very narrow for political speech).

2) UK Courts: - Under the HRA 1998 the question of the degree to which UK courts should defer to

the way Parliament, the executive or various administrative bodies have balanced free speech with

other interests, arises. The tendency is for UK courts not to defer to the authorities. The protection

of freedom of expression is an established role for the courts.

3) Positive Duties or Obligations: - National authorities have limited obligations to take positive steps

to protect freedom of expression. Ozgur Gundem Vs Turkey (2001) 31 EHRR 49, included

allegations by editors and owners of a newspaper that it had been forced to close because of

orchestrated and very violent acts of harassment done against it and that these allegations had been

inadequately investigated and responded to by the authorities. In finding a breach of article 10,the

Court of Human Rights held that the effective exercise of (freedom of expression) does not depend

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 merely on the state’s duty not to interfere, but may require positive measures of protection, even in

the sphere of relations between individuals. However, such a duty is not absolute---the state is not

required to expend disproportionate amounts of resources to protect an individual who wishes to

express himself or herself. A positive obligation should not be ‘interpreted in such a way as to

impose an impossible or disproportionate burden on the authorities.

4) Prior Restraint:- One of the debates about the law of the freedom of expression generally is

whether the law should be used to prevent publication in the first place (e.g. through an injunction)

or whether freedom of expression is best protected by allowing publication even of material which,

after publication, can be the subject of legal action against the speaker.

The main argument in favor of banning prior restraint orders is that it maintains the

‘hearers’ interests’ in the content of the expression. In particular, it makes it difficult for

government and powerful individuals or groups to prevent information and ideas getting into the

public domain.

The main argument for allowing prior restraints is that some legitimate restrictions on

speech would lose their force altogether if publication were allowed. If, for example, the point of

legitimate restriction on free speech is to protect information obtained in confidence, there is little

point if the law cannot protect the confidence by restraining publication.

Freedom of Expression and section 12 HRA 1998:-

During the passage of the HRA 1998, Parliament expressed concern that some convention

rights, in particular the right of privacy in article 8, might be used to limit freedom of expression,

especially media freedom, more than was acceptable. Section 12 was introduced and applies whenever a

UK court is considering whether to grant civil remedy (including an injunction prior to publication or

damages after publication) which affects the exercise of freedom of expression.

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 Section 12(2) requires that, unless there are compelling reasons to the contrary, a remedy

affecting freedom of speech should only be granted if the person against whom the injunction is made is

present or presented.

Section 12(3) deals with interim injunctions. These are holding injunctions whose effect is to

prevent publication of a matter in the period before the full trial to decide whether or not the law permits

publication, is held. An interim injunction can be issued on the basis of a ‘balance of convenience’ which

does not deal with the legal rights and wrongs but relates to the issue of whether it the applicant or

respondent who has most to lose it if publication is allowed in this interim period. Given the ‘perishable

nature’ of much news and information, issuing an interim injunction can have the effect of stopping the

story once and for all. For this reason, under section 12(3) an interim injunction affecting freedom of

expression can only be issued if the court goes beyond the balance of convenience and considers, by

reference to the merits of the case, that the claimant would ‘probably (more likely than not)’ succeed at the

final trail. The degree of probability required depends on the circumstances (Cream Holdings Ltd Vs

Banerjee (2004).

Section 12(4) requires a court to have ‘particular regard’ to the importance of article 10. In

respect of matters affecting journalistic, literary or artistic material, the court must consider the extent to

which the material is or is about to be available to the public, whether publication is or would be in the

public interest and ‘any relevant privacy code’ (e.g. in the context of the media, the Codes of Practice of

the Press Complaints Commission or, for broadcasting, Codes supervised by Ofcom and BBC).

Section 12(4) may be of symbolic rather than real effect. As Sedly LJ noted in Douglas Vs Hello!

(2001), giving particular regard to article 10 must include considering Article 10(2). This necessarily

means seeking a fair balance with competing rights, such as private life in article 8. It follows that section

12(4) does not give the right of free expression ‘a presumptive priority’ over other rights. This view has

been accepted by the House of Lords in Compbell Vs MGN Ltd (2004)

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The Scope of Article 10(1):-
Article 10 likewise ensures your entitlement to impart and convey what needs be in

any medium – including through words, pictures and activities. It's regularly used to guard press

opportunity and ensure writers' sources. This correct spreads:

Political expression– including quiet fights and exhibits

Artistic expression

Commercial expression– especially when it additionally raises matters of genuine open discussion and

concern.

Article 10 protects ‘freedom of expression’, not just freedom of speech. Expressive activity is not confined

to speech. It can, for example, extend to expressive acts that do not involve words at all, such as the

playing of music, dancing or the wearing of particular clothes.

Political expression is given particular protection under article 10. 'Political' is given a wide

definition and includes, for instance, participating in political demonstrations. Article 10 also extends to

artistic and commercial expression, although restrictions may be easier to justify in these areas than in

respect of political speech

An expressive act can, of course, give rise to issues within the ambit of more than one article. Restrictions

on dress for example could give rise to issue under article 8 the right to private life or under article 9 the

right to freedom of thought conscience and religion the tendency of the court is to decide that one article is

on predominantly in issue and that all substantive issues can be dealt with under its terms.

Article 10 protects not just the ideas and information in themselves but also particular way an individual

seeks to express him or herself; Article 10 includes right to speak in one’s own voice. Political speech,

artistic speech and commercial speech are considered below.5

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www.libertyhumanrights.org.uk/
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Freedom to receive information:-
Access to information held by government and other public bodies is essential for an

effective political democracy. The judgements and choices of a political kind that citizens make depend on

the information that is available and that depends, largely, on the ability of individuals and organizations

and, most importantly, the media to obtain information. In a way receiving information is the most

important aspect to freedom of expression since the overwhelming majority of people have no realistic

access to the media in order to express their views and opinions.

Convention: - The court of human rights has held that the right to receive information prevents the

government from restricting the flow of information that others are prepared to give. It cannot be used to

compel the government or others to disclose information it wishes to keep secret.

In Leander Vs Sweden (1987) 9 EHRR 433, the applicant claimed that he was entitled to see his security

vetting which had found that he was a security risk. He had been unable to challenge this and, as a result,

he had lost his job. The court of Human Rights held that there had been no violation of article 10. The

right to receive information does not impose an obligation on the government to impart such information.

As was observed (by the commission) in Bader Vs Austria (1996) 22 EHRR CD213, article 10 does not

give 'an unfettered individual right to be informed by state authorities on issues of general interest in a

specific way' .The court of Human Rights has, however, recognized that a right to receive information

even from an unwilling government may arise where it is necessary in order to uphold other convention

rights and freedoms such as the right to private and family life under article 8. Information that has a

particular significance for an individual’s private life for his or her sense of Identity, for example, may

need to be disclosed (see Gaskin Vs United Kingdom (1989) 12 EHRR 36). Similarly, information

necessary to enable an individual to assess environmental are other dangers to health (see, for example,

Guerra Vs Italy (1995) 20 EHRR 277) may need to be disclosed.

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Human Rights Act 1998:- The general position under the convention has been followed by courts in

England and Wales.

In R (Persey) Vs Secretary of state for the environment, Food and Rural Affairs (2000) EWHC 371, the

Administrative Court followed Leander and refused to hold that article 10 was engaged when the

government refused to hold an enquiry into the foot and mouth outbreak of 2001 in public.

In London Regional Transport Vs Mayor of London (2000) EECA Civ 1491, the mayor of

London wanted to publish a ‘redacted’ report (i.e. one in which commercially sensitive information had

been removed) on the funding, through public private partnership, of London Underground. The

companies involved objected on the grounds of confidentiality. The court found that publication on

balance, was in the public interest and they were persuaded to this conclusion, in part, by giving due to the

right to receive information under article 10.

Freedom of the media:-

Convention
The importance of a free media has been emphasized time and again by the court of human rights and

freedom of the press is clearly protected under article 10 (1) (many of the cases refer to ‘press' but include

TV).

The principles derived from leading convention cases on media freedom such as Lingens Vs Austria (1986)

8 EHRR 407, and Fressoz and Roire Vs France (2001) 31 EHRR 2.

Safeguarding the freedom of the media is of particular importance for the maintenance of freedom of

expression.

 The media is the ‘task’ of imparting Information and ideas of public interest.

 The public has a right to receive such information and ideas.

 The media has a vital ‘watchdog' role to play in democracy.

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  It is incumbent on the media to ‘impart’ information and ideas on political issues including

controversial ones.

Responsible journalism:-
The media have 'duties and responsibilities'. This has played a significant role in the way legal limits on

the media, such as the possibility of an action for damages for ‘defamation’, are handled in the law of

England and Wales.

Thus media freedom, under the HRA 1998, can depend on:

 An idea of ‘responsible journalism', and

 Establishing the public interest in publication.

Protection of sources:-
The court of human rights has recognized the importance for freedom of the press for journalists to be able

to protect their sources.

Under English law, section 10, of the contempt of court act 1998 establishes the general rule that

journalists may protect their sources but it allows a court order disclosure for various purposes such as

national security, the prevention of crime or the interests of justice. The inference of article 10 on the

application of the act is shown in the cases involving the publication of Lan Brady's health records (he is a

notorious murderer).

Restrictions under article 10(2):-

Any restrictions on speech are expressive eggs that are within the scope of article 10 (1) will be violations

unless the state can prove that the restriction is justified in terms of article 10(2).

Under the HRA 1998, UK courts have adopted the basic Strasbourg principles under article 10(2).

Duties and responsibilities:-

The convention text recognizes that the freedom of expression carries with it ‘duties and responsibilities’

and it is on this basis that is speech can reasonably be restricted. Whilst the duties and responsibilities

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class can influence the way a court views various issues, it does not relieve a court of the need for close

scrutiny of the reasons adduced by States for restricting expression.

‘Duties and responsibilities' have been emphasized by the court of human rights in the following situations:

The duties of publishers of books aimed at children which had an allegedly obscene content:

The duties of the media, owners, editors and journalists, in the context of reporting terrorism and armed

struggle, to ensure that there reports do not become a vehicle for the dissemination of hate speech and

promotion of violence.

Prescribed by law:-
Restrictions on freedom of expression must meet the standard of 'legality' which pervades the convention.

Specially there must be;

 A basis in law for the restriction.

 The law must be accessible to the individual likely to be affected by it.

 That terms of the law must be sufficiently precise for the individual to be able to regulate his or her

conduct without breaking the law.

 The law must not be arbitrary and incompatible with the 'rule of law'.

Expression on political and public issues:-

In assessing the democratic ‘necessity’ of any restriction on this page the court of Human Rights has

emphasized again and again the importance of protecting political speech. Very little, if any, margin of

appreciation is allowed in respect of such speech. Likewise, UK courts are unlikely to defer overmuch in

this context. Restraints on speech which, for example, involve criticism of ministers, officials or

government policy will be hard to justify.

Broad definition of political speech:-

Political speech is given a very broad definition. It is not confined to party political matters but includes

information about, and comment on, matters of general public interest. The political or public dimension

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to speech trigger article 10 protection even if there may be other aspects to it ( such as commercial self-

interest) which, without the political aspect, might make restriction easier to justify.

General principles:-
General principles that the court follows in assessing the need for restrictions of political speech include:

 Freedom of expression is recognized as an essential condition of a democratic society as that term

is understood by the court

 The courts, not the authorities, have the last word on whether or not a restriction on political

speech is necessary; such restrictions must be subject to the closest scrutiny by the court.

 Pluralism, the recognition that different people have different standards, means that article 10 must

protect ideas and expressions even if they ‘offend, shock or disturb' the majority of respectable

citizens.

 The protection offered by article 10 extends to groups or individuals who are seeking

constitutional change such as the abolition of the monarchy (or even the possible breakup of the

state or at least considerable autonomy for certain regions); such an expression may be protected

even when it takes place against a background of violent disorder (there are a number of cases

involving Turkey which relate to this)

However:

 Article 10 permits States to adopt appropriate measures guarantee public order and, in particular,

to use the criminal law to suppress incitement to violence.

Restrictions on political speech:-

Despite the importance of expression dealing with public and social affairs, the court of Human Rights

does recognized the right of states to suppress speech in certain circumstances. Proportionate restrictions

aimed at protecting national security, for example, are permitted. An important example arose out of the

long running ‘spy catcher’ saga of the late 1980’s.

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Political expression and the political process:-
Politicians and the political process
It is particularly important that the laws must protect the freedom of speech of political actors, particularly

elected representatives and those putting themselves forward for election.

Parliamentary privilege
The freedom of elected representatives in Parliament is achieved by effective rules of parliamentary

privilege, and the necessity for these has been recognized by the court of human rights.

Parliamentary privilege
This is the freedom of parliament to organize itself and conduct its own affairs free from any legal control

enforced by the courts or from other forms of improper influence. In particular, MPs enjoy freedom of

speech (see Article 9 of the Bill of Rights 1688) and so it is not possible to seek either criminal or civil

remedies against an MP for things said in Parliament.

Election restrictions
Freedom of expression can be restricted in the context of elections. The aim is to achieve a 'level playing

field' on which political parties can set the political agenda at election time, present their policies and

compete for votes. The law can be used to try to ensure that, at election time, the political agenda is not

hijacked by wealthy and powerful pressure groups. This is a complex mater. In the United Kingdom there

is:

 A complete ban on the broadcasting (TV and radio) of paid-for political advertisements but no

restrictions on press and poster political advertising (indeed, such advertising receives less

regulation than ordinary commercial advertising);

 Registered political parties have the right to make party political and Party election broadcasts;

 At election times there are strict limits on expenditure at the constituency level, the amounts are

quite small and, generally, only the candidates and their agents can spend money. Third parties

who wish to spend money to influence an election in a particular constituency are limited £500.

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Political advertising
The ban on broadcast political advertising was upheld by the English courts in R Vs Radio Authority ex

parte Bull (1995) 4 AII ER 481. This involved advertising by amnesty international aimed at promoting

human rights, especially in the context of Rwanda.

The limits to political speech: hate speech, racism, incitement:-

The extent of tolerance of intolerance and political speech is one of the ongoing dilemmas of a liberal

society. Article 10 protects political speech which disturbs, shocks or offends. Therefore, if it is legitimate

under the convention to restrict political speech, something more than the speech being merely offensive,

etc. must be at stake. Individual cases must, of course, meet the tests of Article 10(2). The test for being

'prescribed by law' is normally satisfied if the suppressing laws are formulated by statute. Often, the

suppression of such speech can have the aim of preventing ‘disorder are crime’ or protecting 'the right of

others. Compatibility with article 10 then depends on the proportionality of any ban in the circumstances

of the case.

Political outcomes which would violate human rights

One issue is the extent to which political parties and others are free to advocate the passing of laws which,

if they were brought into effect, would create a society in which important Human Rights would be

violated. The court of Human Rights has shown itself willing to uphold bans on, for example, Islamicist

political parties in Turkey, which, if they came to power, might bring about such a state of affairs.

Advocacy of political violence

Article 10 does not protect speech which aims at inciting violence or hated. The reaction of the Turkish

government to the insurrection against it by part of its Kurdish population has given rise to a large case

law on the issue. Whether speech or other expression is an incitement depends not just on the dictionary

content of the words but also on the context. Issues such as:

 Who is speaking (whether in an official capacity or not)

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  The nature of the medium (suppression of the mass media may be easier to justify than of a small

circulation magazine)

 The area in which the words will be read and listened to

Hate speech
Article 20 ICCPR requires states to ensure that:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility

or violence shall be prohibited by law.

Article 10 ECHR does not expressly require the suppression of hate speech, such as racist speech.

Nevertheless, in Jersild Vs Denmark (1995) 19 EHRR 1, the Court of Human Rights held that the

expression of vicious racist sentiments would not be protected by article 10. They were likely to go

beyond being merely disturbing, shocking or offensive.

There can be no doubt that the remarks (made by racist during a television program) were more than

insulting to members of the targeted group and did not enjoy the protection of article 10.

Human rights Act 1998

In England and Wales, Part III of the Public Order Act 1986 (POA 1986) creates a range of offences

dealing with incitements to racial hatred in various contexts. Legislation dealing with football hooliganism

criminalizes racist chanting. Under the Crime and Disorder Act 1998, some offensives can be severely

punished if there is evidence of a racial motive and, since 2001, an anti-religious motive. All these Acts

criminalize expression and must be interpreted consistently with article 10.

Artistic expression:-
There is no expressed protection for artistic speech in article 10 (unlike article 19(2) ICCPR which

protects a person’s freedom of expression ‘orally, in writing, or in print, in the form of art or through any

other media of his choice). Nevertheless, the Court of Human Rights has made it clear that the protection

of Article 10(1) extends to artistic works; both the freedom to create artistic works and the freedom to

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disseminate them through exhibitions and other methods. In Muller Vs Switzerland (1998) 13 EHRR 212,

the court of human rights understood artistic expression as affording 'the opportunity to take part in the

public exchange of culture, political and social information ideas of all kinds’.

Works of art that have overt political and social themes can enjoy the high degree of protection given to

political speech. However, article 10 also protects works that have no social and political purpose and

which aim, for example, simply to be beautiful. However works without an overt social and political

purpose may have a lower degree of protection. In other words, absent a clear political purpose, it is easier

for the state to show that an act of censorship or restriction is justified in terms of article 10 (2).

Works which is merely pornographic and makes no claim to be otherwise enjoys little protection under the

convention. The problem here is that the right to freedom of artistic expression under Article 10 may give

little assistance to artists whose work is vulnerable to state claims that it is indecent or pornographic but

who are seeking, through artistic production, to challenge conventional conceptions of ‘art’ or

conventional moralities.

Secondly, any ban must be to further one of the purposes listed in article 10(2). In the context of art works

and alleged obscenity or indecency, the Court of Human Rights has accepted that bans and prosecutions,

etc. Can be for 'the protection of....morals'

Thirdly, therefore, any such ban or prosecution must be 'necessary in a democratic society’. In the context

of expression that is banned or prosecuted in order to protect morals, the Court of Human Rights has

allowed wide margin of appreciation (at least since Handyside Vs United Kingdom (1976) 1 EHRR 737,

one of its earliest cases). The court of Human Rights does not accept that there is a tension between its

insistence that expression is protected by Article 10 even if (in the often repeated formula) it 'offends,

shocks or disturbs' giving States a wide margin of appreciation over the burning of works on the grounds

that they are seriously offensive though not otherwise harmful.

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Commercial expression:-
Commercial speech, such as that found in catalogues or advertising, is capable of protection under article

10 (1). However, the court of Human Rights accepts that States have a very wide margin appreciation over

the need for restrictions. Speech which is entirely or predominantly commercial enjoys only a low level of

protection; it is a relatively easy for the authorities to show that the public good requires restriction on

speech. If commercial speech also has political overtones, then it will enjoy greater protection, as in

Barthold Vs Germany (1985) 7 EHRR 383.

Restrictions on advertising are also, usually, compatible with article 10 so long as the public interest

served by the Ban out weights the interest of the public in hearing about the products in issue.

In R (British American Tobacco) Vs Secretary of the state for health (2004) EWHC 2493 (Admin), the

ban on tobacco advertising in the United Kingdom was upheld by the administrative Court. It satisfied the

need for proportionality where restrictions on human rights are concerned. Proportionality was measured

against the wider margin of appreciation left to the national authorities by the court of human rights.

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BIBLIOGRAPHY
 https://heinonline.org/

 Human Rights, Dr. Howard Davis

 https://www.ukessays.com/

 https://www.equalityhumanrights.com/

 https://rm.coe.int/

 http://www.legislation.gov.uk/

 https://en.unesco.org/

 www.libertyhumanrights.org.uk/

 https://www.loc.gov/

 https://justice.org.uk/

 http://www.law-democracy.org/

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