Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
14 Cards in this Set
- Front
- Back
What are the 4 different justifications underlying 'expression?'
|
1) Argument from truth- creating a 'free market' of ideas- the truth should prevail.
-This concerns free discussion of opinions and historical/scientific fact. 2)Argument from self-development/fulfilment- freedom of expression and experience in art/literature etc for the development of the person. -This argument has been attacked on grounds of hard-core pornography- damaging and degrading- does not create fulfilment/development. 3)Argument from moral autonomy- individuals should choose for themselves what expression to engage in- the state should not impose moral views of some onto others. 4) Argument from democracy- citizens must be well informed to partake in the democracy process- this allows political expression/public interest speech. -The media plays a vital role in conveying the public interest. |
|
What is political speech?
|
-includes speech of public interest, and is at the top of the hierarchy so gets the most protection. The ECtHR is more likely to find that there has been a breach of article 10 in the restriction of political speech.
|
|
What are examples of political speech?
|
Jersild v Denmark- There is likely to be a breach of article 10 if the interference concerns political speech.
Thorgeirson v Iceland- allegations of police brutality- a breach of article 10 was found. |
|
What is artistic expression?
|
It is second in the hierarchy, and can include sexually explicit expression.
|
|
What are examples of artistic expression?
|
-Otto-Preminger Institute v Austria- the court found that the Austrian authorities had acted proportionately, and therefore there was no breach of article 10.
-Muller v Switzerland- The court granted the state a wide margin of appreciation, and subsequently no breach of article 10 was found. -Wingrove v Switzerland- the court held that the state was in a better position to judge on the protection of morals, so a wide margin of appreciation was given, and no breach of article 10 was found. |
|
What happened in VBK v Austria?
|
The Austrian courts forbade the exhibition of a painting by Otto-Muhl, which depicted various public figures (e.g. MOther Theresa, an Austrian Cardinal and several political figures) in graphic sexual positions.
-The painting was damaged by a visitor who covered it in red paint (including Mr Meischberger's face) Mr Meischbereger sought an injunction against the exhibition of the painting. -The ECtHR held that the aim was purely the protection of an individual's rights rather than public morals as the government claimed. -The caricature-like nature of the painting suggested that it was a from of artistic expression and was not meant to reflect reality- artistic expression and social commentary. -The fact that the painting had been damaged diminished Mr Meicshberger's claim, and therefore a breach of article 10 was found. |
|
What is expression purely for entertainment?
|
Expression that contains no artistic elements, and is therefore afforded the weakest protection by the ECtHR.
|
|
What is an example of expression purely for entertainment?
|
Scherer v Switzerland
|
|
What happened in Scherer v Switzerland?
|
-The case concerned hardcore pornography with a public element, as it was relatively easy for an adult to walk in.
-Based on the principle of moral autonomy, a breach of article 10 could be found- adults should have the freedom to see/hear what they want. -Safeguards against children were present, as the video was not on sale. -Therefore, the state's conviction was disproportionate, and the ECtHR found a breach of Article 10. |
|
What is the point of the margin of appreciation?
|
-The margin of appreciation is relevant to steps 3 and 4 of the test (the requirements of necessity and proportionality)
-It allows for a degree of deference to democratically elected decision-makers (state judges.) -Allows for a limited extent of cultural diversity between European states. -It gives discretion regarding the enforcement of state obligations under the convention. |
|
What factors influence the margin of appreciation given?
|
-Whether there is a European consensus on the necessity of restricting the expression in question.
-The type of speech/ expression in question (generally a greater margin of appreciation is afforded regarding artistic as opposed to political speech) -The 'legitimate aim' relied upon by the state- some aims are more objective than others e.g. in Sunday Times v UK, protecting the authority of the judiciary was a more objective aim than protecting morals, therefore a narrower margin of appreciation was given regarding the former. |
|
What does subsidiarity mean, and in which case can its application be seen?
|
-Letting communities decide democratically at local level what is appropriate for its members.
Wingrove v UK-The prevention of Wingove's work from being distributed fell within the discretionary area of each national community, and therefore there was no violation calling for European intervention. In Otto-Preminger, it was stated that 'The court does not consider...that the Austrian authorities can be regarded as having overstepped their margin of appreciation.' |
|
What is universality? and in which cases can its application be seen?
|
-The same standard of European protection for everyone, regardless of national community.
Goodwin v UK- The ECtHR held that the ordering of Goodwin to disclose the identity of his source, violated hi right to freedom of expression. Jersild v Denmark- Strasbourg found that the repressive measures violated the journalist's right to freedom of expression. |
|
What remedies are available?
|
The purpose of the reparation is to put the applicant in the position he/she would have been in had the violation not taken place- compensation will usually be awarded.
|