European Convention of Human Rights - Essay Example

Explore the issue of interpretation and compatibility between the European Convention on Human Rights and UK law in the context of any article 2-12 of your choice. Introduction The concept of human rights is by no means of recent vintage. It is used primarily to define relationships between the citizens and the State, by constituting a check on the awesome power of the State and by enabling human beings to flourish to their fullest potential free from oppression, strife, hunger and discrimination. A thriving and robust democracy, it is often said, can only be achieved when basic human rights are preserved. Cherished principles like press freedom, religious freedom, diversity and pluralism are indispensable requirements of a democratic society. It is difficult, if not altogether impossible, to argue against the validity of these principles. The various conflicts and revolutions in the world have shaped the concept of human rights as we know it. In the last two hundred and fifty years, we see the clamour for human rights as the clamour of a world and of the various peoples inside it for equality and freedom. The European Convention on Human Rights was crafted with the end in view of promoting and preserving these rights. Area of law In the ECHR, the writer has chosen Articles 10, which pertains to Freedom of Expression. It While the right to free speech and assembly is a crystallized principle that has been place almost since the beginning of time, enjoying a cherished position in the bill of rights of virtually all civilized legal systems, the interpretation of what constitutes free and protected speech still has yet to be perfectly refined. This provision has been invoked many times over in the course of history, whether within the European Union or outside, successfully and unsuccessfully; and Courts have had many opportunities to set standards and devise guidelines to determine if the speech in question should be protected or not. It becomes more difficult when the right to free speech competes with another principle, for example, the principle of public order. In "easy" cases, all that should be done is look through jurisprudence until one finds the applicable case with similar facts. In "hard" cases with novel facts, the role of the judge becomes infinitely more difficult. The boundaries are ever-shifting; and internally, the judge will be trying not only to apply the law, but to subject the facts of the case in question to her own subjective inquiry in order to determine intent or mens rea. Statement of the law Article 10 of the ECHR reads: 1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. The United Kingdom law that will be examined in light of compatibilities and non-compatibilities are the Human Rights Act 1998, in particular the provision on the right to free expression and the right to privacy and the Public Order Act. The Human Rights Act 1998 received royal assent on November 9, 1998 and came into force on October 2, 2000. The objective of said Act was to harmonize the domestic law of the United Kingdom with the European Convention on Human Rights. To reaffirm the commitment of the UK to human rights and civil liberties, it is now possible under the said Act to file a claim for violation of the ECHR without going to the European Court of Human Rights in Strasbourg. Says Weinstein (2000): This ability to transcend national law, and to compel revision of such law to comport with rights guaranteed by the European Convention in a broad range of areas, most often within the exclusive purview of national and local courts, is of historic note. Generally, nation states have been the final arbiters of most issues affecting their citizenry and within their borders. By treaty, the signatory nations of Europe have granted the ECHR binding authority to decide cases affecting their citizenry and other persons subject to their authority. In instances where state law is found inconsistent with an ECHR judgment, the nation at issue is obliged to amend its national law to comport with the ECHR decision. These cases illustrate the concept of what is increasingly being referred to as an evolving European supranational identity. The ECHR grants jurisdiction to any individual, non-governmental organization, or group claiming be a victim of a violation of the European Convention by a ECHR signatory nation, and to bring cases before it, as does, in applicable cases, the European Court of Justice (the "ECJ"), the court of the European Union, based in Luxembourg. Equally important, it prohibits any public body from behaving in a manner that is incompatible with any of the rights guaranteed under the ECHR. (Hoffman & Rowe, 2003). Freedom of expression, also known as the right to free speech, is enshrined in Article 10 of the Human Rights Act of 1998 (hereinafter, HRA), which states that 'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.' Article 8 of the Human Rights Act states that, "Everyone has the right to respect for his private and family life, his home and his correspondence." Critical Analysis There can be no doubt that freedom of expression is of paramount importance.1 It is important to note that Article 10 protects not merely the substance of the idea but also the form that they are conveyed. This was the ruling in the case of Oberschlick v. Austria2, where the Court held that the form of the expression should also be considered protected speech. This is bolstered by the fact that in the case of Stevens v. United Kingdom3, the concept of expression covers even "actions". In one case, the judge held that the right to privacy is trumped by the fact that there were "legitimate aims to be pursued," as in the case of A v. The United Kingdom,4 where a Member of Parliament, after identifying the applicant and giving her exact address, proceeded to describe her as a "neighbor from hell". In recent times, particularly given the public's voracious appetite for information on the private lives of celebrities and the entertainment media's eagerness to satisfy such an appetite, the tension between the right to free speech and the right to privacy grows sharper. Article 8 of the Human Rights Act states that, "Everyone has the right to respect for his private and family life, his home and his correspondence." It must be underscored that "although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. In the case of Von Hannover v. Germany5, the ECHR ruled in favour of Princess Caroline in this wise: The Court considers that a fundamental distinction needs to be made between reporting facts - even controversial ones - capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of "watchdog" in a democracy by contributing to "impart[ing] information and ideas on matters of public interest (Observer and Guardian, cited above, ibid.) it does not do so in the latter case. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned (see Plon (Socit), cited above, ibid.), this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life. Traditionally, of course, free speech and its interpretation vis a vis other values have always been problematic. The boundaries are ever-shifting; and internally, the judge will be trying not only to apply the law, but to subject the text or speech in question to her own subjective inquiry in order to determine the intent of the message-bearer and what the material was trying to say. Social and political values inevitably come to the fore. To quote legal writer Thomas Streeter (1995), "It is in the character of language, in other words, that a judge will never be able to look at the text of the Bill of Rights and legal precedents to decide whether or not flag burning is protected by the First Amendment; he will always in one way or another be forced to make a choice about whether or not he thinks it should be protected, and will always be faced with the possibility that a reasonable person could plausibly disagree." In the case involving Michael Douglas and OK! Magazine6, the court similarly ruled in favor of the privacy of the Douglases. On their wedding day, a resourceful photographer, using subterfuge, was able to sneak inside and take unauthorized pictures of the bride and groom and their guests. He then sold these photographs to Hello! Magazine, a rival magazine company of Ok! Douglas and Zeta-Jones brought suit, and one of their claims is a violation of their right to privacy. The decision also added another layer to the privacy vs. free speech debate in that it also acknowledged the right of the individual to make information about himself or herself public before everyone else does, and profit from such information. To quote from the decision: "The judge, at paragraph 196, held that the law of confidence protects "those who seek to manage their publicity as part of their trade or profession and whose private life is a valuable commodity". If this statement is correct the law treats information about a celebrity's private life as a trade secret and grants an injunction against publication of such information, or damages in respect of it, not because of the distress which the invasion of privacy causes but because of the commercial damage caused by infringing the celebrity's monopoly right to make such information public." In the case of Campbell v. Mirror Group Newspapers7 supermodel Naomi Campbell filed a case against The Mirror newspaper for publishing a story and an accompanying photo on her attendance at a drug rehabilitation center. The decision posed the threshold issue in this wise: "The essential question is whether even if a public figure which includes an international celebrity, such as Miss Naomi Campbell, courts and expects media exposure, she is left with a residual area of privacy which the court should protect if its revelation would amount to a breach of confidentiality." The Court eventually ruled in favour of Campbell and ordered The Mirror to pay damages in the sum of 3500. The case succeeded in laying the precedent that if the subject information was procured by virtue of a confidential relationship, then the right to privacy within the law of confidence may be used to prevent such information from being published. Conclusion and Recommendations These kinds of precedent could only impact negatively on the arena of free speech. (Mayes, 2002) When before, free speech was held as inalienable and unshakeable, except in cases of "clear and present danger" or when it involves undeniable obscenity, or when it constitutes an unmistakeable trespass on the dignity of another person, a ruling of this nature withers the principle unjustifiably. These developments in the United Kingdom certainly erode the concept of free speech as enshrined in the Constitution and international covenants. While in the past, judges have been reticent about coming up with decisions that would curtail the right to expression, the alarming trend has been that courts have put such a premium on the right to privacy, at the expense of free speech. Certainly, it is difficult to summon moral outrage and righteous indignation to protect the right of a trash tabloid to print salacious pictures of, for example, Britney Spears, but then this is a question of quality and taste, which is not what judges are meant to decide. A commitment to free speech must be a commitment to all speech - barring of course, those that are clearly obscene or manifestly libelous (in which case, there are existing laws already covering those circumstances). If one permits censorship, then it inevitably creates a slippery slope. As stated by Volokh (2000), "Most of the justifications given for information privacy speech restraints are directly applicable to other speech control proposals that have already been suggested, and accepting these justifications in the attractive case of information privacy speech restrictions would create a powerful precedent for those other restraints." This is certainly not to exculpate the media for their excesses. Something must be said for the dogged, relentless hounding of celebrities; and it is not difficult to understand how vexatious they can be. However, education and editorial regulation are the keys to developing an intelligent, mature media and indeed, an intelligent and mature public. Diluting the time-honoured principle of free speech with a view to improving the quality of discourse is nothing else but throwing the baby with the bathwater. References Alter, K. (2001) Establishing the Supremacy of European Law: the Making of An International Rule of Law in Europe. Oxford University Press, New York. Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Fallon, R. (1997) The Rule of Law as a Concept in Constitutional Discourse. Columbia Law Review, Vol. 97, No. 1. , pp. 1-56. Hoffman, D. & Rowe, J. (2003). Human Rights in the UK: An Introduction to the Human Rights Act 1998. London: Pearson Longman. Lauterpacht, Hersch. 1950. International Law and Human Rights. Connecticut: Archon Books. Mayes, T. (2002). Restraint or Revelation: Free Speech and Privacy in a Confessional Age. Spiked Liberties. Retrieved on 17 March 07 from http://www.spiked- online.com/Articles/00000006DAC6.htm. Mowbray. (2002). Cases and Materials on the ECHR, Butterworths. Streeter, T. (1995) Some Thoughts on Free Speech, Language and the Rule of Law. In Jensen, R. and Allen, D. (Eds.) Freeing the First Amendment: Critical Perspectives on Freedom of Expression. 31-53. New York University Press. Volokh, E. (2000) Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking about You. Stanford Law Review, Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A New Legal Paradigm pp. 1049-1124. Weinstein, B. "Recent Decisions from the European Court of Human Rights." American Society of International Law. May 2000. visited 17 March 2007. http://www.asil.org/insights/insigh45.htm Read More