Home Secretary's letter to Gert Wilders

I can't find an official source, but this is a scan of the letter. Wilders attempts to enter the Uk to present himself at the House of Lords this afternoon.

Most famous freedom of expression speech in British Parliament

This was delivered by the Earl of Chatham ('Pitt the Elder') in 1768, and it was on this basis as much as anything that the United States created its 1st Amendment to the Constitution. 

The irony that a visiting MP is banned from debating on freedom of expression in the House of Lords 241 years later is obvious...

Hate speech: Dutch MP banned in UK, prosecuted in Netherlands

This is an unofficial English translation of the Amsterdam appeal court decision that Geert Wilders, libertarian politicial leader in the Dutch Parliament, has a case to answer for distributing his anti-Koran/Islam film, Fitna.

He has been banned from visiting Britain's Parliament for a debate after a viewing of his film, because a Muslim English peer warned (or threatened) unrest from Muslims who want his film banned. This ban was under sweeping Immigration Regulations NOT domestic human rights law - causing a major diplomatic incident with the Netherlands as MPs of all parties condemned the British government decision:

"Lord Ahmed had previously threatened the House of Lords authorities that he would bring a force of 10,000 Muslims to lay siege to the Lords if Wilders was allowed to speak. Lords authorities had stood firm and said extra police would be drafted in to meet this threat and the Wilders meeting should go ahead. But now the government has announced that it is banning Wilders from the country. A letter from the Home Secretary’s office to Wilders, delivered via the British embassy in the Hague, said:
...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."

Global Online Freedom Act - not in Europe!

The US passed a law requiring US ISPs and technology companies to not cooperate with filtering - especially secret filtering - with repressive regimes. The European Parliament attempt to introduce an equivalent has been rejected by the Commissioner - on grounds of competitiveness with other regions, by which she must mean Chinese and Taiwanese equipment manufacturers. Economics trumps freedom of expression. Note how widespread blocking of websites such as Google and Youtube is.

Seminar 2: Enforcing Human Rights: European Convention on Human Rights

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.

Questions:

• 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)/

Essential Reading:

Summaries of ECtHR cases: 

http://www.coe.int/T/E/Human_rights/hrhb2.pdf http://www.coe.int/t/e/human_rights/media/CaseLawArt10_en.pdf

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.

Further Reading:

a)         Position in the United States

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 United States 250 U.S. 616; 40 S. Ct. 17; 63 l. Ed. 1173; 1919 U.S. Lexis 1784 (available on Lexis), dissent Holmes J.

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) [2005] 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 [2003] EWHC QB 1101 (available on the Court Service web site: http://www.courtservice.gov.uk/View.do?id=1754 and Lexis)

Douglas v Hello! Ltd [2007] UKHL 21

Handyside v. UK, ECHR  judgment 7^th 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

 

Seminar 1: General Issues

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. 

Questions:

• 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?

Essential Reading:

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 (2^nd 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 

General note on materials

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: