Page 316 - Law and the Media

The Human Rights Act 1998
Political
Under Article 10, ‘political expression’ has the highest importance. The expression of
politicians, and in particular the views of the opposition, are therefore given utmost
protection (Castells v Spain (1992)), while politicians must also be tolerant of sharp criticism
of themselves (Lingens v Austria (1986)).

Artistic
Artistic expression receives less protection than political speech. In Muller v Switzerland
(1988), paintings depicting activities involving homosexuality and bestiality were on public
display without warnings. It was held that the duties and responsibilities of the artist imposed
on him special considerations of restraint rather than opportunities of freedom. A similar
approach was taken in Otto-Preminger-Institut v Austria (1994), which upheld decisions to
seize and forfeit a film to be exhibited by the applicant in circumstances where showing it
would result in ‘justified indignation’ among a local population on the grounds of religion.

Commercial
Commercial expression is treated as being of less importance than either political or artistic
expression. In Markt Intern and Beerman v Germany (1989), it was held that an injunction
against a trade magazine that prohibited it from publishing information about an enterprise
operating in its market sector was justified. As commercial speech, it was found to be subject
to different standards of control than other kinds of expression, illustrated by reference to the
truth of items published. The European Court of Human Rights said that even if statements
in the publication were true, they could be prohibited under certain circumstances such as a
duty to respect the privacy of others or the confidentiality of certain commercial
information.

Duties and responsibilities
Article 10(2) provides that the exercise of the freedom of expression carries with it duties and
responsibilities that bear some relation to the restrictions that may be imposed on the
freedom.

Press and television
The press and television are media to which the European Court of Human Rights has
attached great importance in relation to the effective enjoyment of freedom of expression in
matters of political and public concern. The case of Observer and Guardian v United
Kingdom (1991) makes it clear that the role of the press is that of a ‘public watchdog’, which
must impart information and ideas on political issues and other areas of public interest just
as the public has a right to receive them.

The Convention protects the operation of the press in drawing attention to political issues. In
particular, the European Court of Human Rights has given support to the right of journalists
to protect their sources. The general position in relation to the freedom of expression of the
press was analysed by European Court of Human Rights in Bergens Tidende v Norway
(2001), in which it was said that:
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