Page 315 - Law and the Media

Law and the Media
Means of expression
Article 10 protects not only the content of expression, but also the specific means by which
an opinion is expressed.

An extensive range of media for the production, transmission and distribution of information
and ideas, including speech, print, radio and television broadcasting, artistic creations, film
and electronic information systems, are protected under Article 10 HRA.

Even if the person who provides the means is not the holder of the opinion, he is protected.
For example, the organizers of an exhibition of paintings were held to be exercising their
freedom of expression in relation to the paintings (Muller v Switzerland (1988)).

The wide scope of expression makes it impossible to formulate general rules for the
assessment of the need for protection of particular exercises of the freedom, or the extent to
which a government might limit them. Instead a number of factors, including the kind of
expression, the medium through which it is delivered and the audience to which it is directed,
must be taken into account in order to determine the extent of protection that the court might
allow a particular item of expression. ‘Expression’ is not restricted to verifiable, factual data,
but also includes opinions, criticism and speculation, whether or not they are objectively
‘true’ (Lingens v Austria (1986)).

Restrictions
The freedom is subject to some restrictions set out in Article 10(2). These must be construed
strictly, and the need for any restrictions must be established convincingly (see, for example,
Zana v Turkey (1997)).

Much of the European Court of Human Rights case law relating to Article 10 has been
concerned with the scope of such restrictions. The cases emphasize the need to ‘balance’
freedom of expression with the public interest, although in practice the European Court of
Human Rights has engaged in a quite complex process of consideration of a multitude of
factors.

In the absence of ‘bright lines’ of distinction (Observer & Guardian v United Kingdom
(1991)) the matter becomes one of appreciation for the court, which will look at:

The type of expression involved
The duties and responsibilities attached to the particular exercise of the freedom
The means of the communication
The audience to which it is directed, and
The significance of the interference and the purpose for which it is imposed.
Types of expression
Different types of expression have been given different levels of protection by the European
Court of Human Rights.
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