Title: “ Freedom of look constitutes one of the indispensable foundations of… a [ democratic ] society… [ It ] is applicable non merely to ‘information ‘ or ‘ideas ‘ that arefavorablyreceived or regarded as unoffending or as a affair of indifference, but besides to those that offend, daze or upset the province or any sector of the population. ”Handyside V United Kingdom
Essay on Freedom of Expression
The instance ofHandysideV United Kingdom( 1979 ) is a premier illustration of the viing issues faced by the Courts when make up one’s minding whether or non to let an person to freely exert his freedom of look, or to allow the Torahs of the land to restrict the same. Any discourse about freedom of look nevertheless, must first include a brief penetration into the history of this right, which is a basis of a democratic society.
In the English constitutional system, the Torahs are passed by Parliament, which is regarded as supreme [ I ] . Despite the importance with which the fundamental right to freedom of look is revered in the UK, the Legislator has had to move to on occasion restrict this right to guarantee the merely and just disposal of society.
Freedom of look encompasses more than merely unwritten look. It has been defined as:
‘… .this right shall include freedom to seek, have and leave information and thoughts of all sorts, irrespective of frontiers, either orally, in composing or in print, in the signifier of art, or through any other media of his pick. [ two ]
In the British constitutional system, a individual is free to make or state as he/she pleases unless otherwise restricted by jurisprudence. Sir William Blackstone, who was a steadfast advocator of an individual’s cardinal rights, and wrote and lectured extensively on the topic in the mid-eighteenth century, stated that: ‘This autonomy, justly understood consists in power of making whatever the Torahs permit [ three ] ” .
It is said that the sentiments of Sir William Blackstone carried such sway in jurisprudential circles that they were even felt on the Torahs and the Constitution of the United States of America [ four ] . For case, paperss such as the Declaration of Independence in 1776 and the ‘Bill of Rights’ in 1791 enshrined,inter alia, cardinal rights such as freedom of address, faith, peaceable assembly, and that one should non be deprived of one’s life, autonomy or belongings without due procedure of law’ . [ 5 ]
A more recent illustration of the above-named rights can be found in the Universal Declaration of Human Rights [ six ] , and even more late in the European Convention for the Protection of Human Rights and Fundamental Freedoms ( 1950 ) ( ‘ECHR’ ) , which the UK is a signer to. Some would state that the impact of the UK’s determination to subscribe to the ECHR, which accordingly hands over supervisory legal power to the Strasbourg Court, called into inquiry the cardinal and long standing philosophy of Parliamentary Supremacy.
Whilst this may or may non be the instance, in English constitutional system, Parliament is Supreme, and can, in theory, decide to go through statute law which annuls the ECHR if it so chooses. Sir William Blackstone in theComments on the Laws of England, Vol 1 describes the UK constitutional system as follows:
“..the legislative assembly, being in truth the autonomous power, is ever of equal, ever of absolute authorization: it acknowledges no superior on Earth..” [ seven ] .
This statement expounds the impression of Parliamentary Supremacy in the English constitutional system.
Whilst we do non hold a written fundamental law as such, we do hold certain legislative acts and charters purporting to execute similar maps. The most salient of which are as follows:
- Magna Carta 1215 ;
- The Petition of Rights 1627 ; and
- The Bill of Rights 1689.
The aforementioned are non statues per Se, but are paperss incarnating the monarch’s credence of certain ‘demands by Parliament and its people’ .
Albeit these paperss are non legislative acts, they do hold statutory force, but do non basically concern the subject under treatment ; the freedom of look.
As briefly highlighted above, the constitutional Torahs of Britain are used in order to curtail autonomies that are deemed non to be contributing for public good or the society at big. Such autonomies can, and will, merely be curtailed to accomplish a legitimate purpose to guarantee the due and merely disposal of the whole state. It ought to be borne in head nevertheless, that such restrictions can merely be enforced by jurisprudence and non arbitrary power.
That said, there is a constitutional right to the freedom of look in England: seeBrown v. Cassell & A ; Co. Ltd[ eight ].Whilst this is the instance, as a signer to the ECHR, the UK is besides obliged to follow with the ECHR, which was incorporated into domestic jurisprudence with debut of the Human Rights Act 1998. [ nine ] It is just to state that the incorporation of the ECHR into UK domestic jurisprudence has efficaciously reinforced a UK citizen’s right to freedom of look.
The extent to how this translates in pattern can be illustrated in the instance of:Handyside V United Kingdom[ x ] . At paragraph 49 of its judgement the tribunal said:
“The tribunal ‘s supervisory maps oblige it to pay the extreme attending to the rulescharacterizinga ‘democratic society ‘ . freedom of look constitutes one of the indispensable foundations of such a society, one of the basic conditions for its advancement and for the development of every man… . This means, amongst other things, that every ‘formality ‘ , ‘condition ‘ , ‘restriction ‘ or ‘penalty ‘ imposed in this sphere must be proportionate to the legitimate purpose pursued. ”
The above instance was a premier illustration of a set of fortunes where the UK Government deemed it necessary to restrict an individual’s, Mr Handyside’s, right to freedom of look. The instance involved the publication and distribution of stuff that was ruled to be contrary to the Obscene Publications Act 1959. [ eleven ]
Whilst both the Strasbourg Court and the UK Government doubtless hold the freedom of look in high respect, the entreaty was overpoweringly rejected by the Court ; the Judgess holding by bulk of 13 to 1 that the UK Government’s Torahs curtailing Mr Handyside’s freedom of look were lawfully sound.
Pursuant to Article 10 of the ECHR:
“ 1.Everyone has the right to freedom of look. This right shall include freedom to keep sentiments and to have and leave information and thoughts without intervention by public authorization and regardless of frontiers. This Article ( art. 10 ) shall non forestall States from necessitating the licensing of broadcast medium, telecasting or film endeavors.
2. The exercising of these freedoms, since it carries with it responsibilities and duties, may be capable to such formalities, conditions, limitations or punishments as are prescribed by jurisprudence and are necessary in a democratic society, in the involvements of national security, territorial unity or public safety, for the bar of upset or offense, for the protection of wellness or ethical motives, for the protection of the repute or rights of others, for forestalling the revelation of information received in assurance, or for keeping the authorization and nonpartisanship of the bench. ”
The above-named Article high spots that, whilst being a cardinal right, the right to freedom of look is a qualified right by virtuousness of Article 10 ( 2 ) , and non absolute. Therefore, when faced with a instance of this nature, the Courts are required to set about the backbreaking undertaking of trying to strike a just and proportionate balance between the freedom of look on the one side, and restricting those rights in conformity with Article10 ( 2 ) of the ECHR on the other.
For case, a noteworthy instance, which was heard in the House of Lords, was the instance ofNaomi Campbell ( Appellant ) V MGN Limited ( Respondent )[ xii ] , which, as noted by Lord Nichols of Birkenhead ( at paragraph 12 ) concerned:
‘The familiar competition between freedom of look and regard for single privateness. Both are vitally of import rights. Neither has precedency over the other.’
Following much deliberation, the House allowed the entreaty. Lord Carswell, at paragraph 171, stating:
‘I would consequently keep that the publicationof the 3rd, 4th and 5th elements in the article constituted an violation of the plaintiff in error ‘s right to privacy that can non be justified and that she is entitled to a redress. I would let the entreaty and reconstruct the justice ‘s order.’
In the non excessively dissimilar instance ofReynolds v. Times Newspaper Ltd and OthEr [ xiii ] , the House of Lords had to make up one’s mind between the following two cardinal rights: freedom of look and the protection of one’s repute. At paragraph 32, Lord Nichols of Birkenhead, stated:
‘..any curtailment of freedom of look must be convincingly established by a compelling countervailing consideration, and the agencies employed must be proportionate to the terminal sought to be achieved.’
The House, by a 3 – 2 bulk dismissed the entreaty. This clearly illustrates the complex and frequently all right balance that has to be struck between the viing issues in such instances.
That said, when faced with a more serious issue, for case national security, the Godheads have illustrated that they will non forbear from restricting the right to freedom of look if demands must. In the instance ofShayler, R.v[ xiv ] . Lord Bingham of Cornhill summarized ( at paragraph 24 ) the issues to be decided as follows:
‘It is on the inquiry of necessity, pressing societal demand and proportionality that the existent issue between the parties arises’ .
He farther states ( at paragraph 26 ) :
‘The acerb trial is whether, in all the fortunes, the intervention with the individual’s convention right is prescribed by national jurisprudence is greater than is required to run into the legitimate object which the province seeks to achieve…..The Official Secrets Act 1989, as it applies to the plaintiff in error, must be considered in that context.’
In this instance, their Lordships nem con ruled that Mr Shayler’s right to freedom of look had to be curtailed as the:
‘ECHR allows limitations to be imposed upon the right of freedom of look if, but merely if, the limitation is prescribed by jurisprudence and is necessary in a democratic society in the involvements of national security..’ . ( at paragraph 40 )
It was found in theShaylerinstance that where the issue of national security was at interest, the freedom of look was merely excessively high a monetary value to pay.
It can be garnered from the above judgements that the Courts have struggled with the viing issues of freedom of look on one side and the every bit valid and opposing issues on the other. In seeking to strike a proportionate balance between the two, the Courts have, in general, endeavored to safeguard the right to freedom of look, to guarantee it remains ‘..one of the indispensable foundations [ in ] . society..’ .
Merely when faced with the offseting issues that merely can non be reconciled if society is to be allowed a border of grasp in ordering suited Torahs, to guarantee that its involvements are protected, is when we find the legislative assembly, and finally the tribunals, governing that the curtailment of this right ought to be enforced. This illustrates that whilst in our constitutional constitution, we enjoy unparallel autonomies and freedoms, peculiarly in relation to the freedom of look. This cardinal right ought non to be, and is non, permitted without the individual’s demand to move with some grade of consideration and duty for our fellow citizens, to guarantee that our freedom of look does non traverse the line of what may ‘offend, daze or disturb…’ .
As pointed out by Sir William Blackstone, the constitutional makeup of the UK is one which entrusts its citizens with the autonomy to move with decorousness in society. This is the autonomy to bear the personal duty of striking a just balance between freedom of look on one side, and the parametric quantities which are prescribed by jurisprudence on the other, rendering the look unlawful. Where an person over stairss this grade, the Courts, as illustrated, will non waver to govern in favor of restricting or baning the freedom of look, by using and construing the jurisprudence in a mode that achieves the coveted result of striking a proportionate balance between the viing factors. Article 10 ( 2 ) was drafted consequently to, when necessary, allow member provinces to curtail the freedom of look of those who fail to move in a painstaking and disciplined mode.
That said, the incorporation of the ECHR into domestic jurisprudence has reinforced the right to freedom of look. This is a cardinal right that the Courts have proved that they will endeavor to safeguard every bit vehemently as they possess the power to make so. It is a right that all citizens of democratic states, the UK legislative assembly, members of the bench and those of the Strasbourg Court, clasp in high respect. As celebrated, at paragraph 52 of its judgement inVogt v Germany( 1995 ) 21 EHRR 205, the tribunal:
, ” …….reiterates the basic rules laid down in its judgements refering article 10:
“ ( 1) freedom of look constitutes one of the indispensable foundations of a democratic society and one of the basic conditions for its advancement and each person ‘s ego-fulfilment. Subject to article 10 ( 2 ) , it is applicable non merely to ‘information ‘ or ‘ideas ‘ that arefavorablyreceived or regarded as unoffending or as a affair of indifference, but besides to those that offend, daze or disturb ; such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society ‘. ”
Legislation and instance jurisprudence clearly suggest that the freedom of look is valued extremely, and is viewed as a cardinal right that ought non to be tampered with lightly. However, the instance jurisprudence, in both the UK tribunals and that of Strasbourg, has evidenced that when faced with a instance of this nature, the issues are closely scrutinized to guarantee that the right balance is struck for the greater good of democracy.
That being the instance, the Judges have demonstrated that they are best placed and equipped to find when it is “necessary” to curtail the cardinal right to freedom of look, if it is deemed to be imperviable to the imposts and Torahs of the land. Such a judgement is non made lightly nevertheless, as noted by Lord Bingham of Cornhill in theShaylerinstance ( at paragraph 23 ) :
‘It is obviously from the linguistic communication of article 10 ( 2 ) , and the European Court has repeatedly held, that any national limitation on freedom of look can be consistent with article 10 ( 2 ) merely if it is prescribed by jurisprudence, is directed to one or more of the aims specified in the article and is shown by the province concerned to be necessary in a democratic society. “ Necessary ” has been strongly interpreted: it is non synonymous with “ indispensable ” , neither has it the flexibleness of such looks as “ admissible ” , “ ordinary ” , “ utile ” , “ sensible ” or “ desirable ”. [ fifteen ]
GLOBAL WORD COUNT: 2557
Munro, Studiesin Constitutional and Administrative Law, London, Butterworth’s
D. Yardley,Constitutional and Administrative Law, 8ThursdayEdition, Butterworth’s
Sir W. Blackstone,The Commentaries of the Laws of England, Vol. 1 ( 1765-1769 )
Human Rights Act 1998
UK Case Law:
Campbell ( Appellant ) V MGN Limited ( Respondent )[ 2004 ] UKHL 22
Reynolds v. Times Newspaper Ltd and OthEr [ 1999 ] UKHL 45, [ 1999 ] 4 ALL ER 609 [ 1999 ] 3 WLR 1010 ( 28ThursdayOctober, 1999 )
Shayler, R.v[ 2002 ] UKHL 11 ( 21stMarch, 2002 )
Debnath, R. V[ 2005 ] EWCA Crim 3472 ( 02 December 2005 )
A V B & A ; amp ; C[ 2002 ] EWCA Civ 337 ( 11th March, 2002 )
Strasbourg Case Law:
Lindon, Otchakovsky-Laurens and July v. France– 21279/02 [ 2007 ] ECHR 836 ( 22 October 2007 )
Case of Handyside v The United Kingdom( Application no. 5493/72 ) ( 7ThursdayDecember 1976 )
Alithia Printing Company Ltd– 17550/03 [ 2008 ] ECHR 420 (Application no. 17550/03 )( 22 May 2008 )
European Convention on Human Rights and the Protection of Fundamental Freedoms ( 1950 )
International Covenant on Civil and Political Rights ( 1966 )
hypertext transfer protocol: //www.lonang.com/exlibris/blackstone/