Thursday, 17 December 2009
Monday, 14 December 2009
Statement by Secretary General of the Council of Europe Thorbjørn Jagland
Strasbourg, 09.12.2009 – The Secretary General of the Council of Europe, Thorbjørn Jagland, today gave the following message to mark Human Rights Day:
“Freedom of expression is a fundamental human right, enshrined in the European Convention on Human rights and a pillar of the Europe we know today.
We live in an age of technological innovation and advancing globalisation, where freedom of expression must continue to be central to our vision of Europe. The Internet is a space of creativity and enormous opportunity, but it can also present threats to our privacy, and dangers related to all sorts of cybercrime. We must never forget that the Internet can be (mis)used to promote discrimination and hatred. That is why freedom of expression is not an absolute right, it is a right that comes with responsibility. So it must be on the Internet.
On the occasion of International Human Rights day and recognising the many essential advances in protecting and promoting human rights, the Council of Europe will seek close cooperation with governments and the private sector to make sure that human rights are both promoted and protected from abuse online”.
Tuesday, 8 December 2009
Monday, 16 November 2009
Friday, 23 October 2009
Wednesday, 14 October 2009
Monday, 31 August 2009
Tuesday, 9 June 2009
Thursday, 19 March 2009
Thursday, 12 March 2009
Thursday, 12 February 2009
Wednesday, 11 February 2009
...the Secretary of State is of the view that your presence in the UK would pose a genuine, present and sufficiently serious threat to one of the fundamental interests of society. The Secretary of State is satisfied that your statements about Muslims and their beliefs, as expressed in your film Fitna and elsewhere would threaten community harmony and therefore public security in the UK."
Monday, 9 February 2009
Monday, 5 January 2009
Who has rights (freedom of expression or privacy) and against whom they may be enforced? If it is not possible to enforce rights, they may seem to the person whose rights have been invaded to have little value. Mechanisms of enforcement are crucial. What is significant in the context of this course is that the media, as well as having rights – notably freedom of expression – may also infringe the rights of others, especially privacy. Typically rights protect individuals against the actions of government or public bodies. Although the media may fall within the definition of a public body, equally many media are private actors. How do the mechanisms of enforcement work in this context?
The ECHR (European Convention on Human Rights) and the ECtHR (European Court of Human Rights) located in Strasbourg, France, are both creatures of the Council of Europe. Article 10 ECHR protects freedom of expression. The case law of the ECtHR dealing with Art. 10 is expanding rapidly, and this particular body of case law is very relevant as regards the protection of free speech across Europe. The Council of Europe has 47 members at present, and the organisation includes several countries which are not member states of the EU (e.g. Albania, Turkey, the Ukraine, the Russian Federation). All 27 member states of the EU, however, are also members of the Council of Europe. The Council of Europe is completely independent of the European Union (EU). The ECtHR is not to be confused with the European Court of Justice of the EU (ECJ) located in Luxembourg.
- How does Art. 10 ECHR work? (Part 2 puts a brake on Part 1?)
- What is the “doctrine of the margin of appreciation”?
- How can a case be brought to the ECtHR?
- In addition to Art. 10 ECHR, what other ECHR articles are of relevance to the media and to freedom of expression in Europe?
A video history of the ECtHR entitled “The Conscience of Europe” can be found on the Court’s website: http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/How+the+Court+works+(film)/
Summaries of ECtHR cases:
Barendt, Freedom of Speech (Oxford, 2005, OUP), chapter 2, pps 441-444
Janis, Kay and Bradley, European Human Rights Law, (Oxford, OUP, 2000) ‘The Limits of Positive Obligations’ pp. 244 – 253
Barendt Broadcasting Law: A Comparative Study (1995, Clarendon Press), chapter 2 ‘Broadcasting Freedom’
M. O'Boyle, Colin Warbrick, Ed Bates and D.J. Harris, Law of the European Convention on Human Rights, 2nd. ed. 2005, OUP.
a) Position in the
Fowler and Brenner (1982) “A Marketplace Approach to Regulation” 60 Texas Law Review pp. 207-257
Cox Broadcasting Corp. et al. v. Cohn No. 73-938 Supreme Court of the United States 420 U.S. 469; 95 S. Ct. 1029; 43 L. Ed. 2d 328; 1975 U.S. EXIS 139; 32 Rad. Reg. 2d (P & F) 1511; 1 Media L. Rep. 1819
Abrams et al. v. United States No. 316. Supreme Court of the
b) Position in the United Kingdom
Hunt, M., ‘The Effect on the Law of Obligations’ in Markesinis, B. S., (ed) The Impact of the Human Rights Bill on English Law (1998, Clarendon) pp. 159- 180
Re S (A child)  1 AC 593 (this case has been discussed at Child and Family Law Quarterly (2006) 18(2), 269-285)
X, a woman formerly known as Mary Bell and Y v. Stephen O'Brien, News Group Newspapers LTD and MGN Ltd  EWHC QB 1101 (available on the Court Service web site: http://www.courtservice.gov.uk/View.do?id=1754 and Lexis)
Handyside v. UK, ECHR judgment 7th December 1976, (A/24) 1 EHRR 737 (also available on ECHR web site: http://www.echr.coe.int/ )
c) International Law
Article 2(1) ICCPR
Communication 361/198 A Publication and A Printing Company v. Trinidad and Tobago, note especially para 3.2
d) Types of Regulation
See Hans Bredow Institut Report of the European Commission on different types of regulation in the media sector, especially country reports on the UK and France: http://ec.europa.eu/avpolicy/docs/library/studies/coregul/interim_app_2.pdf
Before considering any substantive legal issues, we need to address some general issues. We look at freedom of expression, what it might mean at a theoretical level and why it is perceived as important.
- What are the rationales behind Freedom of Expression?
- How is Freedom of Expression guaranteed nationally and internationally?
- What are the main rationales behind Media Law, Policy and Regulation?
- Are these the same for all channels of communications?
- What are the main differences in approaches to regulation of expression between the US and countries of the EU?
Barendt, E., Freedom of Speech (Oxford University Press, 1985) (especially Chapters 1 and 3) 2nd Edition Oxford University Press 2005.
Tambini, D., Leonardi, D. and Marsden C. Codifying Cyberspace, Routledge, London, 2008. (chapter 11).
Also read one of the following:
Goldberg et al (eds), Regulating the Changing Media: A Comparative Study (1998 Clarendon)
Joseph, Schultz and Castan The International Covenant on Civil and Political Rights: cases, materials, and commentary (2nd ed) (Oxford University Press, 2004)
Loveland, I., (ed) Importing the First Amendment (1998, Hart Publishing)
Schauer, F., Free Speech: A Philosophical Inquiry (University of Cambridge Press, 1982)
Sunstein, C. R. Why Societies Need Dissent (Harvard University Press). London 2003.
Sunstein, C.R Republic.com (Princeton University Press, Princeton (2001).
Fowler and Brenner (1982) A Marketplace Approach to Regulation Texas Law Review 60:207 p.209
You will find below the prescribed reading lists and seminar questions for each teaching session in Term 2. There is no set text for this course, although there are a few books which might be useful.
Barendt, Freedom of Speech, (Oxford, OUP, 2005).
Fenwick, H., and Phillipson, G., Media Freedom under the Human Rights Act (Oxford, OUP, 2006) is a detailed discussion of the issues facing the media.
Janis, Kay and Bradley, European Human Rights Law, (Oxford, OUP, 2000) is now dated; a second hand copy may nonetheless prove to be a useful acquisition.
As you will appreciate from the range of issues that will be discussed and jurisdictions covered, it is difficult to find a single work that reflects upon even a majority of these issues in sufficient depth. No one book is sufficient on its own. All the recommended sources are readily available either electronically, or in hard copy in the library; extra copies of specific articles/chapters may be available as offprints.
PLEASE NOTE: photocopied materials will not generally be distributed to students on this course. Research skills are an important part of your legal training, and will inculcated through the preparation of the seminars. The course supervisor will direct you to appropriate sources on a seminar by seminar basis. Note that although some of the materials are quite long, we will re-visit some of these materials on a number of occasions during the course; the reading is therefore not as onerous as might appear. Further, selecting the aspect of a judgment that is relevant to the issue under consideration is a valuable legal skill.
Should you have any queries or questions concerning the course, please feel to contact the course supervisor:
Seminar 1: General Issues
Before considering any substantive legal issues, we need to address some general issues. The first concerns what we mean by comparative law and what it involves. The second looks at freedom of expression, what it might mean at a theoretical level and why it is perceived as important.
Seminar 2: Enforcing Human Rights: European Convention on Human Rights
A significant question is who has rights (whether freedom of expression or privacy) and as well as the issue of against whom they may be enforced. If it is not possible to enforce rights, they may seem to the person whose rights have been invaded to have little value. Mechanisms of enforcement are therefore crucial. What is significant in the context of this course is that the media, as well as having rights – notably freedom of expression – may also infringe the rights of others, especially privacy. Typically rights protect individuals against the actions of government or public bodies. Although the media may fall within the definition of a public body, equally many media are private actors. How do the mechanisms of enforcement work in this context?
Seminar 3: Defamation and Freedom of Expression
Before exploring the scope of speech, the seminar will be begin by focusing on the tension between protection of reputation and freedom of expression. How do the UK, US and Germany vary in their approaches to protection of reputation? Particular emphasis will be placed on the defences available to media organisations and how political speech and public interest speech is protected.
Seminar 4: Political Speech
We discuss the scope of freedom of expression in the context of political speech. Freedom of expression covers a broad range of speech, but one of the key attributes of the media is its watchdog role in a democratic society. This portion of the seminar will therefore concentrate on the protection awarded to the media in this context by looking at the approach of the national systems towards comment on matters of public interest and towards criticism of politicians. This latter issue has also links with issues discussed when we move on to consider privacy. One particular aspect that we will consider, albeit briefly, will be the freedom of minority groups, religious groups and those that are perceived to be terrorists to access the media and any constraints on the reporting thereof. We will not have time in this course to consider the protection of sources or the right of access to information.
Seminar 5: Artistic Speech, Obscenity and Pornography, Commercial Speech
This seminar will look at the other forms of speech/expression protected by freedom of expression, especially as exercised by the media, and its relationship other interests, such as the protection of minors. Some of the general principles regarding freedom of expression will be the same as those discussed in seminar 4, regarding political speech (e.g distinction between statements of fact and opinion, truths and falsehoods). Here particular tensions arise as to the boundary to be drawn between commercial speech and other forms of speech, and whether this makes commercial speech any the less valuable. A linked question is whether motive for speech renders it less worthy of protection.
Seminar 6: Privacy, Human Dignity and the Person in the Public Sphere
One right which might readily conflict with freedom of expression is the right to privacy. The first of these seminars starts by considering the scope/meaning of privacy before considering the circumstances in which privacy may or may not be invaded according to international law. In this assessment, criteria relating to the status of the person as well as the person’s physical location when the invasion of privacy took place may all be relevant. The second seminar considers the position under national law, and specifically the position of the person who has temporarily been in the public eye as opposed to a public figure or celebrity.
Seminar 7: Identity, Publicity and Privacy as a Property Right
Although many justifications for privacy refer to considerations of human dignity, some conceptions of privacy (or aspects of privacy) view the rights almost as a form of property; thus an individual may have a right to his or her image voice or persona that can be controlled and used as a commodity. In addition, some view a publicity right as distinct from the right to privacy. The view of privacy as a property right has been accepted more easily in some jurisdictions than others. As it does not yet seem to have been raised in the context of international law, this seminar will focus on the approach in the national jurisdictions under review.
Seminar 8: Broadcasting Regulation
The broadcast media has typically been heavily regulated in Europe; this is not the case in the USA. The approaches reflect different philosophies about the nature and importance of freedom of expression and the broadcast media. Understanding these competing views requires us to have some understanding of the different freedom of expression claims made by different parties making up the broadcast media (journalists as well as production companies and those responsible for the transmission of content), as well as any rights that the audience may have.
Seminar 9: The Internet and the Impact of Other New Technologies
This seminar will focus on the Internet and its relation to freedom of expression and privacy. While the Internet’s architecture might allow for complete freedom of expression, this architecture can also be used to impose limits. The technology has also changed how information is imparted and received, and on a more fundamental level how people communicate. In this seminar we will return to some of the readings from the first seminar relating to freedom of expression and technology.