Constitutional Rights Freedom Of Expression Notes

Art.40.6.1 1° The State guarantees liberty for the exercise of the following rights, subject to public order & morality: i. The right of the citizens to express freely their convictions & opinions. • Scope? Question arose • ECHR art.10 right also > Everyone has the right to freedom of expression. This right shall include freedom to hold opinions & to receive and impart information & ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. • Both share somewhat similar structure: - freedom of expression - then specify the limits on the right Article 10: STRASBOURG COURT PRINCIPLES • can't assume that what's consistent with ECHR is consistent with Irish constitution - not binding but offers guidance on interpretation They've said: • The two separate structures are of 1) the right 2) the limits - they are not conflicting principles that need balancing. • Simply just a right of freedom of expression with narrow exceptions In 10.2 of that article (Sunday times v UK 1979) • It has a role as an int.court of HR to - supervise the criterion of what's necessary in democratic society. • You must show it was necessary in a democratic society and it's up to the courts to determine this • Complex relationship between EU court and national court - INT. opinion of what's necessary in democratic society prevails over national court FREEDOM OF EXPRESSION - what is it • • • • • - Democracy, progress and development You can't have these without a basic element of freedom of expression Means: - it protects what offends, shocks and disturbs most the population It would be pointless if there was no protection Deviant, unpopular subversive points of view not under this Both courts should bring to bear the values of 'pluralism, tolerance and broadmindedness' < elements of democratic society Role of the pressEU courts: media must observe limits. Duty however, to inform and comment on matters of public interest Inherent right to receive comment from and through the media 'right to know' (Sunday times v UK) Entitled to info. Collected by media people. Press is a vital 'public watchdog' - observer & guardian This means > if you look at case law > clearly much more favourable to journalists conducting their profession as opposed to expression of artists - Allegedly obscene things/blasphemy > more lenient on media and journalists WHAT IS NECESSARY in a democratic society • • • • - Used in article 2 To restrict someone's expression = 'pressing social need' States margin of appreciation > EU court will review what the national court said rather than substitute their opinion Religiously offensive or sexually explicit > court is much less likely to interfere w/ a decision. It prioritises some expressions over others Supervises application of law including national court decisions. • It gives preference for domestic courts to decide however it will still review them and may give different answer. PROPORTIONALITY TEST - The interference by the international court, must be 'proportionate to legitimate aim pursued' by the national court - The justifying reason adduced by the state must be - 'relevant and sufficient' < int.court to decide - Asks more than that the state acts reasonably, carefully and in good faith. - If its these things, the bar isn't met yet, it must by relevant and sufficient. CONTRAST W/ ART 40.6.1? 1) Does the Irish guarantee protect 'information and ideas' like the EU court does? They've decided that it does. 2) Clashing principles between freedom of expression and restricting it. Irish > 'subject to public order and morality'… rather than starting off w/ stating the right, it starts with the restrictions. Public order and morality prevails. ECHR > the right comes first and the restrictions are exceptions 3) Must limits be more than just 'reasonable, careful and in good faith' - not the same proportionality test? • Case law > you don't balance the two separate articles > but applying the prop.test they are in effect applying a balancing test • Role of legislature to represent peoples' values by balancing things? Judicial review of this. How did SC resolve ideas and information disagreement? - Const. uses language > 'right to express freely convictions and opinions' scope? - In early cases about postal monopoly/restrictions on prisoners mail/ prevention of disclosure of commercially sensitive info. < freedom of expression argued. - In these, HC KEANE J & COSTELLOE J said freedom of expression isn't relevant. Why? Convictions and opinions not being restricted.

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