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Freedom of expression: unveiling the myth within the law’s neglect


Freedom of expression forms a pivotal part of the United Kingdom’s (UK) constitutional law and, indeed, an established priority in all democratic societies today.[1] Art 10 of the European Convention of Human rights (ECHR) provides that the right to freedom entails the ability to ‘hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’.


As Barendt suggests, this universal right encompasses different meanings, as to some, the term ‘expression’ is best understood in terms of speech.[2] In political contexts, freedom of speech is related to advocacy, interrogation of insurrection etc. Yet, such speech would be non-existent without the provision of public information, as the concepts of freedom of expression and information are inextricably linked.


This article will discuss the fulfilment of Art 10 through case law pertaining to the freedom of accessing information, and crucial matters of general interest. Ultimately, this protection is limited, rendering Art 10 a deliberate myth in certain circumstances.



Legal neglect


UK law accords some protection for freedom of expression; however, there are cases such as those regarding political advertising on animal cruelty where protection is deficient. The court in Animal Defenders International v UK [3] denied the claimants' clearance in accordance with a political ban to advertise under the Communications Act 2003 and held, on balance, no violation of Art 10 of the ECHR (therein Art 10).[4] Lord Bingham’s leading opinion in this case describes the nature and importance of this question to the freedom of expression in a democratic society:


'in public discussion, differing views are expressed, contradicted, answered, and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated'.

The court attributed its finding to the notion that governments are entitled to retain measures that apply to pre-defined scenarios irrespective of the individual merits of a case. The purpose of Westminster’s intent and the threat from non-deferral of the 2003 Act was also resourceful in the court’s interpretation.


Thus, considering that the claimants fell out, with the highly influential risk groups targeted by the 2003 Act, it is arguable that the restriction to broadcast was unjustifiable, and therefore an alternate approach was required. However, it is worth noting that the courts judgement was the by-product of a full scale of arguments against the impact of wealth and politics in the British context.


Furthermore, in Kennedy v Charity Commission[5] the Supreme Court diverted away from recent Strasbourg case law and established that Art 10 did not grant the right to access information, thereby accentuating individuals’ incapacity to rely upon the common law right to access information under the Freedom of Information Act 2000. In comparison with past cases such as Gaskin v UK[6] and Leander v Sweden,[7] where the right to access to information fell within the ambit of the Art 10, the Kennedy approach was harshly limited.


Limited enforceability of Art 10 was also reflected in the court holding that a positive obligation on states does not exist. Art 10 does not compel the government to disclose information to the individual nor give an individual the right of access to information retained by public authorities. This is heavily attributed to the explicit construction of convention rights. For instance, in Magray Helsinki Bizottság v Hungary [2016],[8] it was acknowledged that the right to access state-held information was not readily apparent in the wording of Art 10 itself.


Indeed, it has been argued that such an omission was measured, and the convention’s authors did so to impose negative obligations on its signatories. This is also apparent in the authors rejection of an Art 10 model based on Art 19(2) of the International Covenant on Civil and Political Rights, which would unambiguously entail the freedom to seek, receive and impart information quintessentially expanding this provision to accommodate special cases.


The summary of general principles provided by the courts to aid their interpretative duty can also be used to pinpoint scenarios where the protection of expression is absent. It reiterates limitations regarding accessing executive documentation and reemphasised the arbiter position under the Leander principle.


The legal landscape of the European Court of Human Rights

The traditional approach of the European Court of Human Rights (ECtHR), as revealed in Leander v Sweden,[9] restricts states from withholding information which ‘others wish or may be willing to impart with’ and does not ‘embody an obligation to impart such information’. This covers circumstances where access is influential to a party’s employment of his or her right to freedom of expression, particularly where Art 10’s renunciation jeopardises proper exercise of that right.


The Leander principle was subsequently applied in Gaskin v UK,[10] where the applicant had received information due to his vital interest in it. Criteria under this principle also shows that the application of Art 10 could arise in crucial situations where, for instance, information disclosure is imposed by a judicial mandate that has gained legal enforceability.[11] The ECtHR also has a customary tendency of granting protection to those who practice the roles of social watchdogs, like the press, under Art 10.[12]


In Youth Initiative for Human Rights,[13] the court dissected whether the person utilising the Art 10 question does so with the aim of a public 'watchdog', that is to update public information. This analysis has led to an expansive interpretation of NGOs as watchdogs, and by implication, situations involving particularly important social issues having greater odds with Art 10. Similarly, in Magyar Helsinki Bizottság,[14] the court states that ‘the function of bloggers and popular users of the social media’ might authorise comparable protection under Art 10.


Broadly speaking, since the conception of Art 10, a substantial number of cases have (at the very least) acknowledged the existence of a personal right to public information to aid public opinion on political and wider general interest.[15] This is best illustrated by the ECtHR’s Grand Chamber reversal of the Kennedy ruling through its judgement in Magyar, which established Art 10’s capacity to bestow the right to access public interest information. As the most recent judgement on publicly held information, this decision shows the European position on a wider right to access within the meaning of Art 10 whilst following the Leander principles. More recent developments also demonstrate the court stirring towards possible consolidation of a right to public interest information.[16]


Thoughts


In cases pertaining to the distribution of publicly held information and the right to public advertisement, case law suggests that the ECtHR provides a much more liberal approach than UK courts. Given the important connection between expression and information, it is probable to say decisions reaching it afford greater protection.


Nonetheless, the Art 10 is readily enforceable in situations unrestricted by express legislative disbarment, as expected by the UK’s negative obligation towards freedom of expression. The Leander principle also allows individuals to access information that would otherwise infringe their rights, a judicial order or obstruct watchdog duties.


There is no consistent indicator of which cases’ merits must uphold Art 10 across both court systems, it is a complex question solely left to separate judicial arbitration and expertise. What can be concluded is freedom of expression is a factual reality, as evident in the law’s recurring position on the existence of a right to provide information in a free and democratic society.




Endnotes

[1] Bill of Rights (1689). [2] Human Rights Act (1998), Art 10. [3] Animal Defenders International v UK [2013] No. 48876/08 . [4] Eric Barendi, ‘Threats to Freedom of Speech in the United Kingdom?’ (2005) 28 UNSWLJ 95. [5] Kennedy v Charity Commission [2014] UKSC 20. [6] Gaskin v UK [1989] 12 EHRR 36. [7] Leander v Sweden [1987] 9 EHRR 433. [8] Magray Helsinki Bizottság v Hungary [2016] ECHR 975, [99]. [9] Leander v Sweden (n7). [10] Gaskin v UK [1989] 12 EHRR 36. [11] Richard Clayton, ‘New Directions for Article 10: Strasbourg Reverses the Supreme Court in Kennedy ‘, (UK Constitutional Association Blog, 13th Dec 2016) accessed 11 May 2023. [12] Matky v Czech Republic [2006] ECHR Appl. No. 19101/03. [13] Youth Initiative for Human Rights [2013] ECHR Appl. No. 48135/06, [168]. [14] Magray Helsinki Bizottság v Hungary (n8). [15] Rubio Imbers, ‘Magray Helsinki Bizotttsag v Hungary: A (Limited) Right of Access to Information under Art 10 ECHR’, (30 November 2016) accessed 10 May 2023. [16] Youth Initiative for Human Rights (n13).

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