Aspects of Freedom of Expression which is enshrined in Article 10 of the European Convention on Human Rights
By Maria Zalti, Jurist
The freedom of expression set out in Article
10 of the European Convention on Human Rights (ECHR) is humans personality
constituent element, because constitutes the most important means of expression
and communication among people. Not only it responds to people social need but
is an indispensable condition of the Republic. In the absence of this freedom,
the circulation of ideas and information is non-existent. The inevitable result
of which is the inability to form a genuine public opinion, which may be anything
that it seeks the ideological, intellectual, pecuniary influence of the
recipient.
The freedom
of expression is the unrestricted ability of any citizen to write, speak, print
freely. Expression includes ideas, messages, news, and generally any person's
point of view, in which he articulates his feelings and ideas. The protection
provided concerns three forms of expression, commercial, artistic and
political. The freedom of opinion contained in the right guarantees freedom of
giving and receiving information, formation and possession of expression, reception
or dissemination or even silence of an opinion.
The nature and scope of freedom of expression have been
determined by the European Court of Human Rights (ECtHR) in Handyside[1] decision. In that
judgment, was confirmed that freedom of expression applies to information and
ideas that are accepted, but also to those that offend, affect or disturb the
state or even any part of the population.
Freedom of opinion and information is violated
by the exploitation of the state's dominant position when it combines media
monopoly with the silencing of certain views or events. Please note that the
article does not provide a requirement for the state to ensure access to
information that is not accessible[2].
The media have the obligation to keep the public
informed and the public has right to receive information. The importance of
freedom of the press and its role in a democratic society has been acknowledged
by the Court which addressed this issue in numerous decisions. In Sunday Times[3] case, was
considered that the adoption of a restrictive decree on a journal article
informing the public about a medicinal product and its use was not necessary
for a democratic society. Further in Goodwin[4] decision, was accepted
that the requirement for a reporter to disclose the sources of his information constituted
an infringement of the right to freedom of expression. Freedom of the press is accompanied by responsibilities and
necessary restrictions, according to the law, for the collection and
transmission of information. In Jayoski[5], the Court
indicated that the term "necessary" means a pressing societal need,
on a more stringent basis than the reasonable and desirable.
In respect to
commercial, criticism business practices are acceptable under limits. The
commercial success and viability of companies in the interests of shareholders
and employees but also for the broader economic good[6], defines a competing interest that must
be protected.
Relate the
right to critique politics, in Castells[7] case, was stressed
that is required for democratic politics. On top of that was told that the tolerable
limits of such criticism are wide-ranging for a political than for any other
individual. However, in Pakdemirli[8] case, was held that
the words that resemble insults rather than political criticism, cannot be
interpreted as an opinion emerging through a political debate. In general, the
acts and omissions of the respective government must be subjected to the rigorous
investigation also by public opinion. Political expression in the European
Court of Human Rights is a key feature of the Republic, as it is a means of
forming a political opinion and consequently becomes a political right. In Wingrove[9], the Court noted
that there is little room for restrictions on political speech or debate on
issues of public interest.
Naturally,
protection is not limited to political issues but extends to any matter of
public concern. Acting in line with the Court in the Handyside judgment which
is cited above, this freedom recommends one of the basic conditions for the progress
of democratic societies and the development of each individual. In addition,
the European Court of Human Rights highlighted the states consider the
necessity of limiting the right, based on the conditions prevailing in their
territory, but without allowing an arbitrary restriction that is not in accordance
with the rules of the European Union. The abusive exercise of the right must be
addressed ex-post rather than preventive because such a case violates the
democratic authority based on the composition of a pluralistic society.
What happens
in case this freedom collides with the right to private life, which is guaranteed
in Article 8 of the Convention? Which one shall prevail? First of all, let’s
see the content of private life. As it
was explained by the Court in Peck v. UK[10], private life’s content: “Private Life
is a broad term not susceptible to exhaustive definition. The Court has
already held that elements such as gender identification, name, sexual orientation, and erotic life are essential
elements of the personal sphere protected under Article 8. The article also
protects a right to identities and personal development and the right to
establish and develop relationships with other human beings and the outside
world and it may include activities of a professional or business nature. There
is, therefore, a zone of interaction of a person with others, even in public
context which may fall within the scope of private life.” It is clear, that the
right extends to aspects relating to personal identity such as the name of a
person or his photograph and includes the physical and psychological integrity.
In Von Hannover[11] case, photographs
of Princess Carolina of Monaco depicting herself in her everyday life in public
places were regarded as protected by Article 8 of ECHR. In any case, there can
be no interference with the core of the right to private life without the
consent of the person, which must be free, explicitly and with full knowledge. Indubitably
private life and freedom of expression are fundamental human rights, in
principle equal. A conflict between these two rights can be dealt with only by
examination of their substance, in order to ascertain whether there are
circumstances justifying the movement of news about a person's private life.
* Maria Zalti, 4 Year LLB student Frederick University
Διαβάστε ακόμα: Expert Witness
[1] Handyside v. the United Kingdom - judgment of 7 December
1976
[3] Sunday Times (No. 1) v. the
United Kingdom - judgment of 26 April 1979
[4] Goodwin v. the United Kingdom - judgment of 27 March 1996
[6] Steel and Morris v. the
United Kingdom - judgment of 15 February 2005
[7] Castells v.
Spain – Judgement of 23 April 1992
[8] Pakdemirli v. Turkey - judgment of 22 February 2005
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