Freedom of expression (1)
01 January 1991
Freedom of expression
bacdoc September=1992
Oberschlick v Austria (23.5.91) Series A, Vol 204
European Court of Human Rights
Facts
During an election in Austria, the leader of a political party
suggested that family allowances for Austrian women should be
increased by 50 per cent, in order to obviate their need to seek
abortions for financial reasons, while those paid to immigrant
mothers should be reduced by 50 per cent. A journalist attempted
to prosecute the politician for incitement to racial hatred and
for breaching the prohibition on activities of the National
Socialist Party. The journalist published the full text of the
criminal information and was in turn prosecuted for criminal
defamation. The journalist alleged breach of article 10 of the
Convention (freedom of expression).
Decision
The court held that article 10 had been breached. Freedom of
expression is an essential foundation of a democratic society and
freedom of the press affords the public the best means of
discovering and forming an opinion on the ideas and attitudes of
political leaders. Although the restriction on freedom of
expression in article 10(2) includes `the protection of the
reputation or rights of others', the limits of acceptable
criticism are wider for politicians than for private individuals.
Purcell v Ireland (16.4.91) No 15404/89
European Commission on Human Rights
Facts
The Irish government introduced restrictions on broadcasts
involving spokespeople from certain listed organisations
including the IRA and Sinn Fein. These restrictions prevented the
broadcast of interviews, or reports of interviews, with
representatives of the listed organisations. The prohibitions
applied to any statement of the proscribed organisations
regardless of the subject matter. The applicants included two
trade unions for journalists.
Decision
The commission declared the application inadmissible. With
respect to the trade unions, it said that, in order to make an
application to the commission, the applicant must be a victim and
must `demonstrate that he himself has been affected by the
alleged breach of the Convention. In the present case, the
measure complained of does not affect the rights of the applicant
unions themselves'. However, tile commission accepted that the
17 individual applicant journalists were victims.
The commission concluded that, although there was a breach of
article 10, this was justified because it came within the
legitimate aims of 10(2), ie, protecting the interests of
national security and preventing disorder and crime. The
commission allowed the government a `margin of appreciation' in
assessing whether the measure adopted - banning the broadcasts -
was the most appropriate to achieve the intended purpose. The
commission went only as far as considering `whether the minister
had convincing reasons for assuming the existence of a pressing
social need for imposing the impugned restrictions on the appli-
cants'. It said that:
`[although] freedom of expression constitutes one of the
essential foundations of a democratic society ... the
defeat of terrorism is a public interest of the first
importance ... In a situation where politically motivated
violence poses a constant threat to the lives and security
of the population and where the advocates of this violence
seek access to the mass media for publicity purposes, it is
particularly difficult to strike a fair balance'.
The commission also rejected the applicant's argument that the
right contained in article 3 of Protocol No I - to hold free
elections under conditions which will ensure the free expression
of the people - was breached by the broadcasting ban imposed on
Sinn Fein, a legitimate political party.
Comment
The case confirms the problematic nature of the very wide
limitations contained within many of the articles in the
convention. It also demonstr