Freedom of expression
01 January 1991
Freedom of expression
bacdoc September=1992
The Observer and The Guardian v UK (26.10.91) Series A, Vol 216
The Sunday Times v UK (26.10.91) Series A, Vol 217
European Court of Human Rights
Facts
These cases concerned the injunctions obtained by the government
in an attempt to ban the publication of extracts of Spycatcher.
Decisions
The injunctions breached the provisions for freedom of expression
set out in article 10 and, as usual in such cases, the court had
to consider whether the restrictions were necessary in a
democratic society and in the interests of national security. The
court stated that article 10 does not prohibit prior restraint
but `the dangers inherent in prior restraints are such that they
call for the most careful scrutiny on the part of the court'. Not
surprisingly, the court held that, once the information was in
the public domain (by publication of the book in the United
States), the injunctions were no longer justified.
However, the court concluded that, until this point, the
injunctions were justified. The interference had legitimate aims
in that it was designed to maintain the `authority of the judi-
ciary' by ensuring that the status quo was preserved until the
trial, to protect one party's rights pending trial and to protect
national security. Thus, the interference was proportionate to
its aim.
Comment
The court, in allowing interference with the freedom of
expression, relied on the `margin of appreciation' given to the
domestic courts. The decision was based on a majority of the
court (14 to 10). The detailed reasoning of the court is
complicated by the number of injunctions sought and obtained
during the Spycatcher saga. Interestingly, a large minority of
the court took the view that prior restraint of the press can
virtually never be justified.
S and G v UK (2.9.91) No 17634
European Commission on Human Rights
Facts
The applicants were a sculptor and the owner of an art gallery.
One of the sculptures consisted of a model's head which had
attached to each of its ears an earring made out of a
freeze-dried human foetus. The applicants were convicted of the
common law offence of outraging public decency.
Decision
The commission declared that the application was inadmissible.
The applicants argued that the law which defined the offence was
inaccessible and that the offence was unforeseeable and thus not
`prescribed by law'. This argument was rejected by the court. The
offence does not include a defence of intrinsic artistic merit
but the commission rejected the argument that the restriction was
disproportionate and would have a chilling effect on the artistic
community, noting `the wide margin of appreciation afforded to
states in the protection of morals, given the absence of any
uniform European conception'. It added that:
`By reason of their direct and continuous contact with the
vital forces of their countries, states are in principle in
a better position than the Convention organs to assess the
necessity of a restriction on artistic freedom of
expression for the protection of morals.'
Castells v Spain (23.4.92) Series A, Vol 236
European Court of Human Rights
Facts
The applicant was a lawyer, a senator and a member of a political
party supporting independence in the Basque region. He wrote an
article about a number of murders allegedly carried out by
fascist groups and suggested that the authorities had done little
to investigate these crimes and that the government was
responsible for the murders. Criminal charges were brought
against him and, in his defence, he argued that the allegations
were true. On appeal, it was decided that the accuracy of
information was not a defence to a charge of insulting the
government.
Decision
The court decided that freedom of expression is an essential
foundation of a democratic society and is especially important
for elected