There is a general consent that free speech is a good thing. Countries without it are undemocratic, not protecting individual rights. Media has encouraged the exchange of ideas; social networks have helped free speech. Judges who have to decide on free speech cases will try to balance this right with public interest. There can be direct clashes with individual rights such as privacy or reputation. There is a problem with blasphemy, obscene expression, pornography, racist speech: do we have to repress them all or just a narrow category?
This problem of balancing the right to free speech and all these individual rights arises in many situations, but especially in media.
Also, there is a question about the status of journalists: do we have to treat them as a media or as a person?
The free speech theory.
Two theories can justify free speech:
Instrumental theories or deontological theories:
-Instrumental theories: Mills and the pursuit of truth, the marketplace of ideas, speech and democracy
-Deontological theories: expression and autonomy (Thomas Scanlon). Provides a basis for the protection if rights of individuals whose speech may not be valued under a more instrumental conception of expression (eg expression by young children might be difficult to accommodate with the instrumental theory)
[...] The margin of appreciation is perhaps best understood as the degree of discretion states enjoy. It is recognised as applying both to the legislature and to bodies, judicial and others that are called to interpret and apply the laws in force. • Polemic speech under article 10: ➢ Lingens v. Austria 1986: The ECHR decided that there was a strong presumption in favour of freedom of expression. Two articles were accusing the Austrian Chancellor of having helped individuals from Nazi groups. [...]
[...] Freedom of expression and the media There is a general consent that free speech is a good thing. Countries without it are undemocratic, not protecting individual rights. Media has encouraged the exchange of ideas; social networks have helped free speech. Judges who have to decide on free speech cases will try to balance this right with public interest. There can be direct clashes with individual rights such as privacy or reputation. There is a problem with blasphemy, obscene expression, pornography, racist speech: do we have to repress them all or just a narrow category? [...]
[...] A wide margin of appreciation is granted to the member States. There is no restriction on reporting of the trial after the event and additional facilities have been made available to a nearby press hall where reporters could watch the trial. (The Court thus held that the respondent state had a wide margin of appreciation concerning the question of live broadcasting from the courtroom. The restrictions in this case were proportionate in circumstances where the trial was held in open court and members of the public were free to attend and to report outside as to what they had heard). [...]
[...] Ireland 1998: (in this case, freedom of expression of the media is an integral part of the administration of justice in public). The Supreme Court held that reporting restriction from the judge is not good. It accepted that judges have the rights to make orders of restriction (= “prescribed by law”). Family cases, rape cases ... are judged “in camera”: in private. The problem is that some people would like to keep some anonymity. ➢ Roe v. Blood Transfusion Service Board 1996: Roe applied for anonymity because she did not want the public to know that she was infected. [...]
[...] • Balancing privacy and freedom of expression. ➢ Herrity v. Associated Newspapers 2009: (a marriage broke down because of adultery relationship with a priest. The woman wanted an injunction but it was not obtained because the right to freedom of expression was superior to her right to privacy.) A marriage broke down. The husband blamed an affair that she had with a priest. There were phone tapings. She was successful in her application to seek damages for the disclosure of it. [...]
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