The European Court of Human Rights, Media Freedom and Democracy

For this week’s blog, I thought it may be of benefit to consider the relationship between the European Court of Human Rights (ECtHR), and cornerstone concepts such as democracy, freedom of expression and media freedom. As stated in the video, the inclusion of this blog post was necessary in order to  appreciate the fact that UK media law does not operate in a vacuum, but rather there are many forces operating which affect the media rules followed in this country. For an understanding of how EU law effects UK law you are directed to this blog post which is intended to supplement this piece and aid anyone’s understanding who has not studied EU law (or you are a fellow third year law student who’s…let’s face it…..simply forgotten all about the EU over the summer!). 

What Will Be Covered?

• What the European Convention of Human Rights (ECHR) is and how it affects the UK.
• What convention rights are particularly significant to media law.
• The Article 10 right to Freedom of Expression.
• A brief analysis of the ECtHR’s approach to media freedom and democracy.
• My final evaluative thoughts on democracy and media freedom.

What Is the ECHR and How Does It Effect Media Law in the UK?

The ECHR is formally known as the Convention for the Protection of Human Rights and Fundamental Freedoms. As the name suggests it is an international treaty designed to protect human rights and fundamental freedoms in Europe. This treaty was drafted in 1950 in light of the carnage and trauma suffered in the second world war.

The fundamental idea behind this convention is that each signatory reaffirms their belief in the idea that fundamental freedoms are the foundation of justice and peace in the world and that these fundamental freedoms are best maintained by:

• a common understanding and observance of the human rights upon which they depend
• an effective political democracy and
• the collective enforcement of these rights

Each signatory is then under an obligation to guarantee its citizens the rights that the ECHR seeks to protect. Through this supranational declaration, the aim is of achieving greater international unity in recognising the equal rights of men and women, and to incorporate the traditions of civil liberty. In order to ensure that the terms of the treaty are adhered to and can be invoked, the Convention establishes the European Court of Human Rights (ECtHR). This is an international court which rules on individual or state applications alleging violations of the civil and political rights set out in the ECHR. Thus the ECtHR makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe. Since 1998 it has sat as a full-time court and individuals can apply to it directly.

How This Relates to The UK

The ECHR was incorporated into English law in the Human Rights Act 1998, which inter alia means that:

-Where a UK citizen feels as though any of their rights (which have been guaranteed by the convention) have been breached, they can bring an action against the offending public body (e.g. national and local government, the courts, the NHS, and the police) in the UK courts instead of having to commence and action in the ECtHR in Strasbourg.

– Under s.2(1) HRA 1998 in deciding matters relating to a Convention right, the UK courts must take into consideration ECtHR’s decisions that relate to the matter at issue.

-The ECtHR’s rulings are binding on the UK courts and so the UK courts are under an obligation to interpret all national legislation in a way that is compatible with the ECHR.

And so it can be seen how the ECHR and the ECtHR has a direct impact on the laws that operate in the UK.

What Convention Rights Are Particularly Significant in Relation to Media Law?

These include:

• the Article 10 right to freedom of expression
• the Article 6 right to a fair trial
• the Article 8 right to respect for private and family life

This weeks blog will be focusing on the Article 10 right to freedom of expression. The right to a fair trial, and the right to respect for private and family life will be discussed in other blogs.

Article 10 right to freedom of expression

Article 10 ECHR provision provides that:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

As it can be seen, this right to freedom of expression not only includes the right to express one’s own thoughts and opinions (i.e. the right to impart information) but also includes the right to receive information without State interference. This expression could be in the form of any medium, including through words, pictures, images and actions including through public protest and demonstrations. Significantly in the context of journalism this means that media originators have the freedom to write and broadcast information and reciprocating this, the public have a right to find out what he or she has to say.  To ensure that free expression and debate is possible, there must be protection for elements of a free press, including protection of journalistic sources.

It also can be seen that this right is not absolute; it is subject to derogation in the circumstances which have been specified in the article itself. Also when applying the convention rights to a particular case, the human rights of the claimant are often directly in conflict with that of the defendants; for example in breach of privacy cases a publisher’s right to freedom of expression is often directly in conflict with the claimant’s right to respect for his private and family life. In these situations the courts resort to a balancing act. Although not specifically mentioned within the text of the ECHR the principal of proportionality operates (see De Burca G. The principle of proportionality and its application in EC law. Yearbook of European Law 1993; 13 (1), 105-150) which means that in performing this balancing act, any restriction on a convention right must be proportionate to the reason for that restriction and must no further than what is necessary.

What has the ECtHR’s approach been in this balancing act?

In this balancing act historically, a high level of protection has been afforded to the Article 10 right to freedom of expression, and this principle has been applied to many new areas of expression. O’ Fathaigh and Voorhoof (See Ó Fathaigh R and Voorhoof G, “The European Court of Human Rights, Media Freedom and Democracy” “Routledge Handbook of Media Law” 2013 [at 107]) in ‘Routledge Handbook of Media Law,’ refer to ECtHR as a great engine for defining and shaping the relationship between journalism and democracy. This can be seen as the ECtHR has long held that as a matter of principle, the right to freedom of expression and information is one of the fundamental characteristics of a democratic society and indispensable for maintaining freedom and democracy in a country.

The roots of this concept were laid in the landmark case of Lingens v Austria (1986) [41] in which the ECtHR firmly anchored the concept of freedom of expression as an indispensable tenant of democracy and stated that it was one of preconditions for democratic progress. This concept has since then been echoed in several other cases including Ozgur Gundem v Turkey (2000) and Manole and others v Moldova (2009). In Manole at [95], in particular the court went to the extent of stating that ‘democracy thrives on freedom of expression.’

As one would expect, the sacrosanctity of this principle has meant that historically the ECtHR has adopted a particularly high standard of scrutiny wherever member states have sought to impose restrictions. This was seen in Observer and Guardian v United Kingdom (1991) at [59] where the court, in interpreting Article 10 rights stated that:

“(a) Freedom of expression constitutes one of the essential foundations of a democratic society…it 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. Freedom of expression, as enshrined in Article 10 (art. 10), is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.

(b) These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the “interests of national security” or for “maintaining the authority of the judiciary”, it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog”.

My Opinion on the Importance of Freedom of Speech

In my opinion this is the correct approach that should be taken. A pluralistic approach to democracy is vital for two main reasons. Firstly as it enables creativity and stimulates thought, and secondly as it enables those in power (i.e. Ministers of Parliament) to give effect to the wishes of those who’s interests they were actually elected to represent. Both these elements are vitally needed in order to facilitate democracy and ensure that we move forward and develop into a more progressive society. After all without freedom of expression, how else could we inform those in power of the problems and the needs of the populous? Furthermore it is only through the open discussion of ideas, and the receipt of accurate facts and figures that usually follow, can we challenge our own prejudices and develop our thoughts on particular matters that affect our lives.

I also can appreciate that it is equally important for the notion of freedom of expression to equally apply to ideas that offend, shock or disturb. This is because, preventing someone from voicing their opinion on grounds that it would offend has no long term benefit for society as a whole; it will not stop that particular individual from holding that opinion and neither will it stop them from acting on it. Only when such a view or idea is expressed, does the possibility arise that it can be challenged. Facts and statistics can then be presented which may influence the holder of that opinion to question the premise on which his opinion was based. This is something which is frequently seen on many radio programmes, in which callers from a range of different backgrounds call in and provide their input on current affairs, which leads to those actively involved in the discussion as well as those listening in to see the issue in a way that may not have been considered before. Thus the conversation which may result from voicing a prima facie unsavoury statement is something that must be encouraged as it has the potential of stimulating thought, encourage cultural appreciation and promotes a culture of tolerance and diversity. If considered from a macro/evolutionary view, these are important societal characteristics that are incredibly valuable from a problem solving perspective as diversity of thought can lead to the finding of more efficient mechanisms of solving problems, and the finding of more effective solutions, as it would stimulate ‘out of the box’ ideas which, as history evidences, can in effect lead to a better quality of life.

So What’s the Role of the Media Here?

This whole system is facilitated through the use of the media in general and especially though the press, as it provide a vital platform on which citizens can share their ideas with others. It is also interesting to note that historically, in an unfree society tyrant have always used press censorship as a means to achieving their aims. In particular press censorship was used in the Tudor times to repress religious decent, and was a means of royal repression. Famously, dictators like Hitler in Germany, Mussolini in Italy, and General Franco in Spain all ruthless and relentlessly apposed free speech, in order to preserve conformity. We can see from this that the Media today, and perhaps always, plays a vital role in

• the means of shaping public opinion
• the management of reality,
• the exercise of power as well as
• the creation of national community.

Some final evaluative thoughts

Through out this very long piece, arguments have been based on a variety of presumptions, the main one being that we live in a Utopian society where all the arms of the state use their power for the purposes for which they were conferred, (e.g. that the MP’s expenses scandal never occurred, and that the Leveson Inquiry’s findings were not at all alarming) and all the constituents of society fulfil their functions properly and efficiently. These presumptions have been made because this area is so vast that a micro analysis of the true state of affairs is simply not possible (a 1000 page textbook might be slightly more befitting for such work). It is therefore that the main aim of this piece was more to delve into theoretical foundations of key media law and constitutional concepts of freedom of expression, media freedom and democracy, so that readers may appreciate the bigger picture or the macro objectives media law sets out to achieve, and how these objectives are valued supra nationally (this it is hoped was displayed by setting out the workings of the ECHR and its enforcement mechanisms.) This is really important as it is very easy to get lost in the dense thicket of black-letter law, without being able to appreciate the true essence what it sets out to achieve.

I hope I have been successful in throwing light on an area that is often presumed to be understood by the masses, whereas evidence would suggest otherwise. I also do sincerely hope that my readers have thoroughly enjoyed reading this as much as I enjoyed grappling with the complex ideas and presenting them in a coherent form. It has been a pleasure, and I leave you with a list of resources that I have found useful in the construction of this series of blogs, and should you have any resources which relate to this topic and would like to recommend please link / indicate them bellow in the comment box.

Bibliography

Verhulst , S. G.and Price , M. E. “Routledge Handbook of Media Law” (2013) Oxford : Oxford University Press