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.
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:
o the interests of national security, territorial integrity or public safety;
o the prevention of disorder or crime;
o the protection of health or morals;
o the protection of the reputation or rights of others;
o preventing the disclosure of information received in confidence; or
o 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.
In 2001 a journalist at the Financial Times (FT) received a copy of a leaked document about a possible company takeover by Interbrew. The FT published the document and three other newspapers (The Times, The Independent and The Guardian) and the news agency Reuters, also reported on the issue and referred to the leaked document. Interbrew brought proceedings against the news groups seeking to identify who leaked the document to the FT. The UK Court of Appeal ordered the FT’s journalistic source to be disclosed to Interbrew, using a common law principle (the Norwich Pharmacal principle) and the Contempt of Court Act.
The newspapers and news agency applied to the European Court of Human Rights, relying on the Article 10 right to freedom of expression. The Court held that the disclosure order interfered with the right to freedom of expression. The Court emphasised the chilling effect of journalists being seen to assist in the identification of anonymous sources. It found that Interbrew’s interests in finding the source of the leak did not outweigh the public interest in the protection of journalistic sources.