Freedom of Expression: Article 10

Article 10: Freedom of Expression

• Guarantees the right to freedom of expression, including holding opinions and sharing/receiving information without government interference.
• This right isn't absolute; restrictions are allowed in a democratic society for reasons like national security, public safety, preventing crime, protecting health/morals/reputation/rights of others, and preventing confidential information leaks.

10.1 Freedom of Expression

• Encompasses the freedom to hold opinions.
• Includes the freedom to receive and impart information and ideas without interference by a public authority.

10.2 Permissible Restrictions

• The freedom of expression is subject to restrictions that are necessary in a democratic society.
• These restrictions are in the interests of national security, public safety, prevention of disorder or crime, and protection of health or morals.
• This also includes the protection of the reputation or rights of others and preventing the disclosure of information received in confidence

Handyside v UK: Scope of Article 10

• Established that Article 10 protects ideas that may "shock, offend, or disturb" the state or any population group within it.
• Margin of appreciation applies.
• Any restriction must address a pressing social need and be proportionate to the legitimate aim pursued, giving sufficient and relevant reasons.
• Involved publication of "Little Red Schoolbook" and aim to protect public morals.

Jersild v Denmark: Political Expression

• Highlights that political expression, especially when pursuing truth and supporting democracy, deserves a higher degree of protection under Article 10.

Guerra v Italy: State's Obligation to Provide Information

• Concerned residents living near a chemical factory suing the government for not informing them of potential dangers.
• While the government wasn't proactively obliged to provide information, it was obligated to provide it if requested.
• States do not have a positive obligation to provide information.

Surek v Turkey: Incitement to Violence

• States that freedom of expression can be restricted if the expression incites violence or hatred, even within a political context.

Axel Springer AG v Germany (2012): Privacy vs. Freedom of the Press

• In this case the right to privacy outweighed the freedom of expression of the press under article 10.
• Involved a German actor in possession of drugs

Balancing Articles 10 and 8

• Consider whether the information contributes to a general interest debate, the notoriety of the person, and their prior conduct.
• The method of obtaining information, its truthfulness, content, form, consequence of publication, and the severity of sanctions imposed are also relevant.

Bedat v Switzerland: Journalistic Ethics

• Involved criminal proceedings against applicant for publishing secret documents.
• ECtHR found no violation and found that the fine imposed was necessary in a democratic society
• Protection of privacy (harm accused dignity) and journalistic ethics (act responsibly and contribute meaningfully) are key considerations.

Defamation Act 2013, Section 1

• Affirms individuals' right to protect their reputation through defamation law.
• Defenses within the law are designed to recognize and protect freedom of expression.

Article 10.2 Restrictions: Proportionality

• States any restrictions on freedom of expression must be proportionate to the aim pursued to be legitimate.

Sunday Times v UK: Legitimate Restrictions

• States restrictions on freedom of expression must be prescribed by law, pursue a legitimate aim, be necessary in a democratic society, and fall within the margin of appreciation.
• Restriction must be proportionate to the legitimate aim.

Kudrevicius v Lithuania: Fair Balance

• Requires a fair balance between the aim of the restriction and the right being limited.
• Any limiting measure must be the least intrusive method available.

Article 8(1): Right to Private and Family Life

• Guarantees everyone's right to respect for their private and family life, home, and correspondence.

Article 8(2): Permissible Interference

• Outlines that public authorities cannot interfere with this right except when it's in accordance with the law and necessary in a democratic society.
• Necessary for national security, public safety, prevention of disorder/crime, protection of health/morals/rights/freedoms of others.

'Everyone' under Article 8

• Extends to both businesses and private individuals.

Niemietz v Germany: Scope of Private Life

• Ruled that a search of a lawyer's office was considered part of their home and private life.

Elements of Private Life

• Includes physical integrity (Wainwright v UK), sex life and gender identity (Halford v UK), personal data, reputation (Pfeifer), names and photos.
• Also covers medical records and DNA (M.S. v Sweden).

Wainwright v UK: Physical Integrity

• Involved the physical integrity of a person.
• Actions were not proportionate to preventing crime and the manner in which they were carried out was disproportionate.

Home: Right to Privacy

• Requires authorities to gain permission before entering your home, regardless of whether you own or rent the property.

Correspondence: Forms of Communication

• Encompasses all forms of communication, including phone calls, letters, text messages, and emails.

Von Hannover v Germany: Private Life in Public

• Established that 'private life' rights can extend to public places.

Von Hannover v Germany (No. 2): Public Figures

• ECtHR found no violation of Article 8, considering the margin of appreciation.
• Caroline was deemed a "public figure," regardless of whether she assumed official functions.
• Whether this affects English law is debatable, as the decision relied heavily on the margin of appreciation.

Investigatory Powers Act 2016

• Grants UK broad surveillance powers for national security, crime prevention, public safety, law enforcement, and intelligence.
• Allows targeted interception of communications and bulk data collection.

Data Protection Act 2018

• Governs the protection of private information in the UK.
• Ensures personal data is processed fairly, lawfully, and transparently.
• Stipulates that private information can only be used for legitimate purposes.

PACE S1: Stop and Search

• Permits police to stop and search individuals or vehicles in public places (or places accessible to the public) if there are reasonable grounds to suspect the presence of a prohibited article.

PACE S2: Search Procedures

• Requires police to follow specific procedures during a stop and search, including identifying themselves, their station, and the grounds for the search.
• R v Bristol (2007) established that failure to follow these steps renders the search unlawful.

PACE S3: Search Records

• Mandates police to create a written record after each search, detailing the person's ethnic origin, object of the search, grounds for the search, date, time, place, and outcome.

HRA 1998 S6: Unlawful Acts

• Makes it unlawful for a public authority to act in a way that is incompatible with a Convention right.

HRA 1998 S7: Legal Proceedings

• Allows legal proceedings to be brought against public authorities for incompatible actions.

HRA 1998 S8: Remedies

• Empowers the court to impose any remedy it deems appropriate for violations of Convention rights.

Tort of Misuse of Private Information

• Arises when private information is disclosed
• This could be considered a breach of Article 8 rights to privacy.

Campbell v MGN

• [No information provided]

Injunction Criteria

• To get an injunction a reasonable expectation of privacy would have to be established .
• The court will then have to consider Article 8 and 10

Murray v Big Pictures: Reasonable Expectation of Privacy

• Ruled that children have a "reasonable expectation of privacy."
• Taking photos of JK Rowling's child engaged Article 8, giving rise to a cause of action under the Data Protection Act 1998.
• However, If there is particular public interest then Article 10 holds greater weight

Factors: Expectation of Privacy

• Attributes of the claimant, the activity engaged in, the absence of consent, the effect on the claimant, and the circumstances/purposes for which the information was obtained.

PJS v News Group Newspapers: Public Release of Information

• Indicates that a fair-minded person would need to see the release of private information as acceptable for it to be permitted.

Richard v BBC (2018): Privacy in Investigations

• Establishes that individuals under police investigation may have a reasonable expectation of privacy regarding information related to the investigation.

Defamation

• Aims to protect a claimant's reputation.

Defamation Act 2013, Section 1

• Requires a claimant to demonstrate the ordinary person would think worse of them.
• The statement identifies and refers to them and is published to a third party.

Defamation Act: Defenses

• Section 2: The statement is substantially true.
• Section 3: The statement is an honestly held opinion.
• Section 4: The statement concerns a matter of public interest, and there was a reasonable belief that publishing it was in the public interest.

Protection from Harassment Act 1997

• Covers harassment and actions that put a victim in fear of violence.
• Harassment requires at least two separate incidents.
• Can be claimed as a civil matter to award damages and an injunction

PHA 1997, Section 1

• Prohibits a person from pursuing a course of conduct that amounts to harassment of another.
• Harassment includes alarming the person or causing them distress.

PHA 1997, Section 2

• Defines a course of conduct as involving at least two incidents.
• Criminal sentences can result in a maximum of 6 months in prison.

PHA 1997, Section 3 (Civil Remedy)

• Grants victims of harassment the right to bring a civil claim for damages or an injunction to prevent further harassment.

Rylands v Fletcher: Strict Liability

• Addresses situations where a person's property is damaged by the escape of non-naturally stored material onto neighboring property.
• This entails strict liability.

Rylands v Fletcher: Legal Interest

• Specifies that the claimant must have a legal interest in the affected land (Read v J Lyons).

Rylands v Fletcher: Claim Requirements

• Bringing onto the land and an accumulation requires that something has been physically brought onto the land in question
• Likely to do mischief requires exceptionally high risk of danger
• Non-natural use of land requires an extraordinary or unusual use of land
• The stored item must escape and cause foreseeable damage.

Rylands v Fletcher: Land Accumulation

• Requires the substance to not already be naturally present on the land, it must be brought there.
• There is no liability if something is naturally present.

Giles v Walker (1890): Naturally Growing Substances

• Ruled that there was no liability when weeds spread onto neighboring land because they were naturally growing there.

Rylands v Fletcher: Likely to do Mischief

• Means it must be likely to cause damage if it escapes, meaning exceptionally high risk of danger.
• It is not the escape that must that have a likelihood but the damage that is caused by the thing

Hales v Jennings Bros (1938): Foreseeable Injury

• [No information provided]

Rylands v Fletcher: Non-Natural Land Use

• Requires an extraordinary or unusual use of the land.
• Domestic water pipes (Transco v Stockport) are not considered an extraordinary use and don't present a high risk of danger.

Rylands v Fletcher: Escape and Foreseeable Damage

• Dictates that the stored item must escape from one property onto an adjoining property.
• Cambridge Water Co. v Eastern Counties Leather held that the damage to adjoining property must be reasonably foreseeable.

Rylands v Fletcher: Answer Structure

• Begins by stating that the claimant may be able to bring a claim in Rylands v Fletcher.
• The elements from Rylands v Fletcher must be applied to the current scenario.
• Rylands v Fletcher is defined as 'Where a person's property is damaged/destroyed by the escape of non-naturally stored material onto adjoining property'
• Legal interest in the land is a must HAVE
• Who owns what and who has control?

Rylands v Fletcher: Answer Structure (Part 2)

• Four elements must be satisfied:(1) The bringing onto the land a substance which is not naturally present on the land, (2) The thing is likely to do mischief if it escapes, (3) A non-natural use of land means some extraordinary or unusual use of land, The thing must escape and cause foreseeable

Rylands v Fletcher: Answer Structure Part 3

• Check for act of god or an act of a stranger
• The victim of the incident must show it has caused some damage or destruction to property
• There has to be a remedy, or compensation for these acts

Rylands v Fletcher: Defenses

• Act of God (Nichols v Marsland, 1876)
• Act of a Stranger (Perry v Kendricks Transport Ltd, 1956)

Private Nuisance

• Is defined as an unlawful indirect interference with a person's use or enjoyment of land or some rights over it, coming from neighboring land.

Private Nuisance: Elements

• Include, the legal interest of the claimant, interference of interest with claims, damage must be reasonably foreseeable.
• Consider relevant defenses and appropriate remedies.

Private Nuisance: Legal Interest

• Claimant must own or rent the land (Hunter v Canary Wharf, 1997).
• Defendant must have used that land.

Private Nuisance: Interference

• Can include smells (Wheeler v JJ Saunders) and Noise (Kennaway v Thompson).

Private Nuisance: Types

• Material Damage, physical damage to land (flooding).
• Loss of Amenity, interference with the enjoyment of the land (noise/smell).

Private Nuisance: Unlawful Interference

• Unlawful means unreasonable, not illegal.
• LB of Southwark v Mills says its not a nuisance if it isn't reasonable.

Private Nuisance: Unreasonable Interference

• Look into Locality and Duration of interference
• Look into, Sensitivity of claimant, Malice, and Social benefit.

Private Nuisance: Locality

• Involves considering the character of the neighborhood.
• What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey (Sturges v Bridgman, 1879).

Private Nuisance: Interference Duration

• The time a nuisance occurs will affect whether it is unreasonable,The longer a nuisance lasts,the more likely it will be considered a nuisance

Private Nuisance: Sensitivity

• Asks whether a reasonable person using their land normally would regard it as a nuisance.
• A claim will fail if someone is affected because of their particular sensitivity (Mckinnon v Walker).

Private Nuisance: Malice

• A deliberately harmful act will be considered unreasonable.
• In Hollywood Silver Fox Farm v Emmett, the defendant who objected to a fox farm fired guns to scare the foxes; foxes sensitive to miscarriages. The defendant held liable.

Private Nuisance: Social Benefit

• May consider the actions reasonable if the defendant benefits the community.
• Miller v Jackson is a case of social benefit.

Foreseeability of Damage: Private Nuisance

• Wagon Mound
• Cambridge Water v Eastern Counties Leather

Wagon Mound: Foreseeability

• Facts: Defendant negligently split oil in the sea; welder ignited oil and fire spread to land.
• Principle The type of damage must be reasonably foreseeable.

Cambridge Water v Eastern Counties Leather: Foreseeability

• Facts: Chemicals seeped through the building contaminating the water to surrounding users.
• Held: Claim failed because it was not foreseeable that chemicals could taint the water supply.

Nuisance: Defenses

• Prescription-D must show he has been using his land in this way for more than 20 years and there has been no complaint between the parties in that time (Sturges v Bridgman, 1879).
• Statutory Authority-If a statute authorizes a defendant to use land in a particular way it is authorized

Sturges v Bridgman (1879): Defense to Nuisance

• Had Lived next to a sweet factory, sued because of vibration.
• Not Liable, had been running for 20 years.

Allen v Gulf Oil Refining (1981): Defense to Nuisance

• Action was fought against the oil refinery and the site was allowed by parliament but not to operate it.

Private Nuisance: No Defense

• Planning permission cannot give permission for a nuisance and will get a claimant no where.
• If the nuisance was there first a victim cannot say they are now sensitive to it.

Private Nuisance: Remedies

• Only types are Injunction and Damages.

Injunctions: Purpose

• To bring action for nuisance.
• A court order to prevent/limit a defendant from doing something or to force a defendant to do something.

Types of Injunctions

• Prohibitory, court order from committing or continuing a tort-nuisance.
• Mandatory, Order to make defendant act in a particular way-When claimant wants the defendant to rectify the damage caused.
• Partial, Order to limit the defendants activities or reduce them-usually grated where the tort had public benefit.

Private nuisance: Remedies, Damages

Remedies of damages are appropriate when finding an injunction is improper

• e.g-public interest or social benefit.
• e.g- consider fairness to a victim, and when interference with the claimant is small.

Private Nuisance: Answer Structure

• Define private nuisance, apply and check all parties are relevant
• Has either material damage or loss of amenity
• The Factors of reasonableness such as location, duration, sensitivity of the, malice and social benefit should be included, apply and explain them

Trespasser

• A visitor who has no permission or authority to be on the occupier's land.

Trespasser: Duty of Care

• 'common humanity' , when occupier knows of danger and the likelihood of trespassers.
• British Railway Board v Herrington (1972)

OLA 1984 S1(1)

• Injury on premises by reason of any danger due to the state of the premises or things done or omitted to be done on them.

OLA 1984 S1(3)

• The occupier will only owe a duty of care if:aware of the danger/believes it exists,risk is the type that defendant is expected to protect against and that he other is in the vicinity of the danger concerned or they he may come into the vicinity of the danger
• the occupier will not be liable if a trespasser is injured by a danger that should be obvious- Ratcliff v McConnell

OLA 1984 S1(4)

• The standard of the duty is to 'take such care as is reasonable in the circumstances so that the tresspasser is not injured by reason of the danger'
• The case is the object or part on the injured land
• It was held that the occupier did not owe DOC as they would not expect a trespasser to be present at that time- Donoghue v Folkestone

OLA STRUCTURE

• __may have a claim againist under the Occupiers Liability Act as a trespasser.
• They must establish that _____ is the occupier.

OLA Structure part 2

• What would you consider to be reasonable in the circumstances
• Under S1, says that the standard of the duty is to 'take such care as is reasonable in the circumstances so that the trespasser is not injured by reason of the danger' and the object on which their being would occur.

Rule of Law

• States that all people are subject to law which is fairly applied and enforced.
• The process of law are administered, enacted and enforced fairly also
• this is to provide a defence against dictatorship
• so authority is distributed evenly in the government.

Tony Honoré's Review

• The government must be fair and clear in the law making and can have no discrimination
• to exist the rule must have limited power and to have citizens with rights.

Dicey's Rule of Law

• Absence of individual power on the part of the state
• Everyone must be equal before the law.
• Supremacy of ordinary law.

Arbitrary Power of the State

• Must be controlled by law and must set limits on what the state can and cant do.
• The actions of government ministers can be challenged

Before the Law

• No person is to be of higher power
• Must deal with everyone equally those who carry out functions must be held accountable

The law must supreme.

• Most laws are made through acts of parliament judicial decisions do still create law

Reform Act

• of 2005 upholds and helps to support the power of the rule of law."

theorist hayek

• absence of arbitrary power in the state
• rule of law become weaker
• modern state is involved in regulating economic activity

Theorist Raz

• Should possess clear rules and procedures to make laws , that do not change with political pressure
• judicial independence must be guaranteed
• principles of natural justice should be looked at
• courts should have the power to judge the way that rules are obeyed

Occupiers' Liability Act of 1957

• When the claimant suffers personal injury while on someones premises and the claimant needs to prove what injuries have occurred

Wheat v Lacon- Occupier

• 'an occupier is someone who has sufficient degree of control over the premises.

OLA 1957 S2(1)

• That the occupier of the premises has a duty to keep the lawful visitors safe.

A premise

s1(3)(a) a fixed or moveable structure including

• covers anything on the premises,-garden,shed.

OLA 1957 S.2 (2)

• That the occupier is expected only to 'keep the premises reasonably safe' from potential damage.

Types of lawful visitors

• Should be adults be wary of Children
• If tradesmen do not have insurance protect yourself.

A lawful visitor

That a lawful visitor is someone who has invited on the premises in question

Adult lawful visitor duty of care

• S2(2) that an adult visitor is a common duty of care and should consider that visitor will be reasonably safe. The occupier is expected to keep the premises reasonably safe not completely safe

Adult visitor used case

• LAVERTON v KIAPASHA TAKEAWAY SUPREME (2002)

Defendant put slip resistance and mopped the floor,

• Decided to take reasonable care didn't need to be completely safe

To Tradesmen. Tradespeople.

• It should be the occupiers decision to consider their call and duty
• Should be appreciative whilst helping

s2.3.5.4

• Children will be careless
• So be-aware

USED CASE

Facts:a 7 7t ate poisonous berries from a public park that killed him that should have had a higher fence

• Held:council were liable -aware of the danger and attracted young children

-That we do not take insurance or trades

• We take duty

(b)2.3..23.23.S.2.OLA 2009

Tradesperson injured doing work for you- not liable

• A gardener fixing your garden
• risk roofer fixing your roof etc

The Tradesperson

• ROLES V NATHAN V CARBON MONOXIDE V WARNING

• The occupier were not liable to a aware damager.

The independent contract.

• Requirements

It must be the occupied

• The task the expert hired should give refrences.

Overview of Article 10, guaranteeing freedom of expression. Exceptions include national security and protecting the rights of others. Restrictions necessary in a democratic society are highlighted.