Article 10 Freedom of expression

The right to freedom of expression is crucial in a democracy – information and ideas help to inform political debate and are essential to public accountability and transparency in government.

Article 10 gives everyone the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without State interference.

This includes the right to communicate and to express oneself in any medium, including through words, pictures, images and actions (including through public protest and demonstrations).

The type of expression protected includes:

  • political expression (including comment on matters of general public interest);
  • artistic expression; and
  • commercial expression, particularly when it also raises matters of legitimate public debate and concern.

For obvious reasons political expression is given particular precedence and protection.  Artistic expression - vital for fostering individual fulfilment and the development of ideas – is also robustly protected.

To ensure that free expression and debate is possible, there must be protection for elements of a free press, including protection of journalistic sources.

The right to free expression would be meaningless if it only protected certain types of expression – so (subject to certain limitations) the right will protect both popular and unpopular expression, including speech that might shock others. 

Interferences on free expression usually involve restrictions on publication; penalties for publication (such as criminalising speech or awarding damages); requiring journalists to reveal their sources; imposing disciplinary measures or confiscating material.

Limitations

Article 10 is a qualified right and as such the right to freedom of expression may be limited.  Article 10 provides that the exercise of this freedom “since it carries with it duties and responsibilities” may be limited as long as the limitation:

  • is prescribed by law;
  • is necessary and proportionate; and
  • pursues a legitimate aim, namely:
    • the interests of national security, territorial integrity or public safety;
    • the prevention of disorder or crime;
    • the protection of health or morals;
    • the protection of the reputation or rights of others;
    • preventing the disclosure of information received in confidence; or
    • maintaining the authority and impartiality of the judiciary.

In considering questions of proportionality the potential for a ‘chilling effect’ on expression, the value of the particular form of expression, the medium used for the expression (i.e. newspaper or television) will all be taken into account, along with other considerations.

Article 10 also provides that it does not prevent the Government from requiring the licensing of broadcasting, television or cinema enterprises, although such restrictions must still be in accordance with law and be necessary and proportionate.

In cases where free expression might be affected section 12 of the HRA requires courts to have particular regard to the importance of the right and to not impose injunctions without the other party being first notified unless there is strong justification for doing so.

Case study - Suzanne Breen

Investigative journalist Suzanne Breen was issued a court order from the PSNI in 2009 to hand over notes containing information on the Real IRA following publication of stories relating to the murders of two British soldiers. Ms Breen, the Northern Ireland editor of the Sunday Tribune, argued that to hand over the notes would endanger her life and that of her family, and would compromise her sources. In June 2009 the High Court in Belfast ruled that Ms Breen’s sources were protected under Article 10 of the HRA.