Thursday, 3 February 2011

Recent cases on freedom of expression

Thanks for sending me information - I was slightly surprised not to receive anything on Nilesat and Al-Jazeera, a past example of broadcast regulation in such cases is that of Lebanese Hezbollah channel Al-Manar (note Hezbollah is now the government of Lebanon, though not in 2005-8 when most of the activity took place) which you can read here in advance of the 15 March class.
Note that recent Article 10 caselaw is available from the Court's website here.
The latest such case is Mirror Group Newspapers v. UK (18 Jan 2011), a case that almost entirely concerned the increasing and much-criticized use of Conditional Fee Arrangements ('success fees') for privacy/libel/breach of confidentiality trials. The Court upheld the newspapers' complaint that the process itself is an abuse of Article 10 - as a result of which Naomi Campbell's costs of over £1,000,000 may well be reduced. The Court held that:
"recoverable success fees for CFAs suffered four flaws highlighted by Lord Justice Jackson’s review as follows:1.   lack of focus and lack of any qualifying requirements;2.   no incentive on the part of the party instructing lawyers pursuant to a CFA to control legal costs; 3.   opposing party driven to settle early regardless of the prospects; and 4.  solictors and barristers allowed to “cherry pick” winning cases to conduct on CFAs. The “depth and nature of the flaws in the system” had been highlighted by the public consultation process and importantly had been largely accepted by the Ministry of Justice.  Nevertheless the UK government had failed to reform CFAs and success fees in order to deal with these serious criticisms.  The ECHR concluded that the UK government had violated Article 10 of the Convention.  The obligation on MGN to pay success fees to Ms Campbell was disproportionate even having regard to the legitimate aim of recoverable success fees and the broad latitude allowed to domestic legislators in such matters." 
Menteş v. Turkey  (33347/04) 25.01.2011The applicant, Güler Menteş, is a Turkish national who was born in 1972 and lives in Diyarbakır (Turkey). A member of HADEP (People’s Democracy Party), she was sentenced in the criminal courts to 10 months’ imprisonment for having organised and taken part in an illegal demonstration protesting against the death penalty passed on the leader of the PKK (the Workers’ Party of Kurdistan, an illegal organisation), for having taken part in demonstrations protesting against Category F prisons and for having spoken to the press. She claimed that the prevention of her attempt to read a statement to the press had amounted to a breach of Article 10 (freedom of expression).
Violation of Article 10
Just satisfaction: no claim made by the applicant within time-limit

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