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