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Freedom Of Expression Notes

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This is an extract of our Freedom Of Expression document, which we sell as part of our Irish Constitutional Law Notes collection written by the top tier of Trinity College Dublin students.

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Freedom of Expression

Irish Times v Ireland (HC 1997, SC 1998) Facts

1. One of the defendants made an order prohibiting contemporaneous reporting of a trial over which he was presiding.

2. The plaintiffs sought an order of certiorari, claiming that the defendant had failed to have regard to the right of the press to freedom of expression. IssueFreedom of expression - Contemporaneous reporting of court proceedings

Supreme Court Judgment

1. Hamilton CJ (concurring)
? In this case there was no evidence before the Circuit Court judge that could justify him holding that there was real risk of an unfair trial if contemporaneous reporting was not prohibited - he was not entitled to assume that such reporting would be unfair or inaccurate.
? Contempt of court proceedings are a sufficient safeguard should it transpire that subsequent reporting is unfair or inaccurate.

2. O'Flaherty J (concurring)
? Freedom of the press is guaranteed under Art 40.6.1 and is not limited to mere expressions of convictions and opinions - it includes a right to publish information which does not involve any breach of copyright provided the public interest is not affected by the publication and there was not a breach of confidentiality in a private or commercial setting.
? In light of the importance of freedom of expression, the risk must be run that, from time to time, the press will distort the proceedings of court.

3. Denham J (concurring)
? The test for whether the accused's right to a fair trial requires that other constitutional rights be overrided is whether a) there is a 'real risk' and b) such a risk can not be negated by appropriate rulings and directions.
? The trial judge erred in his application of this test.

4. Barrington J (concurring)
? Art 40.6.1 appears beside the right of citizens to assemble peacefully and to form associations and unions - these all relate to the public activities of citizens which are at once vitally important to the success of a democracy and a potential source of instability, which is why both the Constitution and ECHR assert and circumscribe them.
? The Article implies a right to communicate facts as well as report on them - this is because it would be ludicrous for an organ of public opinion to have freedom to express a conviction without having the freedom to communicate the facts on which the conviction is based.
? In light of the importance of this right, the trial judge failed to give it due weight.

5. Keane J (concurred)

Kelly v O'Neill (SC 1999) Facts

1. The plaintiff was convicted of a number of drug offences and the hearing on his sentencing was in progress, when the defendant wrote an article in the Irish Times covering facts about the plaintiff which would be inadmissible at the hearing.

2. The defendants were fined for contempt of court and appealed against the fine arguing that their right to freedom expression allowed the publication of such an article after the trial and before sentencing. IssueFreedom of Expression


1. Denham J (concurring)
? A case such as this requires that a balance be struck between the right to a fair trial and to freedom of expression - if there is a real or serious risk or a doubt that an accused would not receive a fair trial, the balance will lie in favour of the accused.

2. Keane J (concurring)
? The protection conferred by contempt of court jurisdiction does not end once the jury have returned their verdict - judges are still human despite their experience and oath of office.
? The right to freedom of expression is not absolute, and a temporary restraint lasting for as short a period as this is not disproportionate to the right of the accused to due process even after conviction.
? The press can print a summary of the findings of fact made by the jury and innocuous information about the accused without interference.
? In deciding whether this article was calculated to interfere with the administration of justice it should be taken into account that a) it did not urge the imposition of any particular sentence, b) it contained inadmissible and prejudicial material, c) the likelihood of the article influencing the sentence was of a low order, in light of the circumstances of the case and d) it was open to the trial judge to conclude that the article had been published in good faith with no intention of influencing the court.
? Even if the defendants were convicted, only a modest penalty should be imposed

3. Hamilton CJ (concurring - agreed with Keane J

4. Lynch J (concurring - agreed with Keane J)

5. Barrington J (concurring - agreed with Keane and Denham JJ)

Murphy v IRTC (SC 1998) Facts

1. The plaintiff had placed an advertisement on radio which the defendants removed pursuant to the relevant legislation, which prohibited the broadcast of advertisement to political or religious ends or in relation to trade disputes. IssueFreedom of expression

Judgment (Barrington J)
? The right to communicate is an unenumerated right protected by Article 40.3.1 - it embraces the right most fundamental to man's survival besides the right to nurture and embraces words and gestures as well as rational discourse.
? The right in Article 40.6.1 is more concerned with public expression by the citizen of his opinions and the facts on which they are based - the two rights overlap to a certain extent.
? Both rights may be limited in the interests of the common good - but their limitation must be proportionate to the aims which the Oireachtas wishes to achieve.
? Thus the test of proportionality should be employed as stated in Heaney v Ireland.
? In this case the restriction on the plaintiff's rights is minimalist - he is precluded only from advancing his views by paid advertisement on television.
? Although a more selective approach could be employed, whereby only offensive advertisements would be banned, the Oireachtas may well have decided it was inappropriate to involve agents of the State in such a controversial process.
? Once the Statute is broadly within the area of competence of the Oireachtas and the principle of proportionality has been respected, the courts will not intervene because it may have made a different decision.
? Thus the provisions pass the proportionality test.
? (from the High Court judgment) considering the propensity of religious beliefs to cause offence, the religious division in Northern Ireland and radio listeners/tv viewers are compelled to listen to the advertisements the legislation is legitimate.

Hunter v Gerald Duckworth Ltd (HC 2003) Facts

1. The defendant published a book in which he alleged that the plaintiff was guilty of crime of which he was found innocent. IssueFreedom of expression - Balanced with a right to one's reputation

Judgment (O Caoimh J)
? There is no essential difference between the Constitution and the Convention - the question is how they are to be interpreted for the purposes of this case.
? The relationship between the right to freedom of expression and the right to one's reputation depend upon the circumstances of the case - it is impossible to define a right of a universal nature that will accommodate both rights in all circumstances.
? In the absence of a clear legislative framework the best approach for balancing these rights is the general public interest defence to be found in the House of Lords decision in Reynolds v Times Newspapers.

Murphy v Ireland (ECtHR 2003) Facts (See Murphy v IRTC) IssueFreedom of expression - Standard of review

? There has clearly been an interference with the plaintiff's right to freedom of expression.
? The legislation pursued the legitimate aims of public order and safety and protection of the rights and freedoms of others.
? Among the duties and responsibilities that attach to the exercise of the right to freedom of expression is the general requirement to ensure the peaceful enjoyment of the rights guaranteed to the holders of religious beliefs, and to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive and profane.
? No restriction on freedom of expression is compatible with Article 10 unless it satisfies the test of necessity in Article 10 (2) - the Contracting States have a certain margin of appreciation when it comes to deciding what is necessary in a democratic society.
? This margin of appreciation is particularly wide when it comes to restrictions on freedom of expression related to matters liable to offend intimate personal convictions within the sphere of morals and religion - This is because there is no uniform European conception of how best to approach this problem and the State authorities, being nearer the people are in a better position to draw the balance.
? To be necessary in a democratic society the measures must address a pressing social need and be proportionate to the legitimate aim pursued.
? In this case the question is whether a prohibition of a certain type (advertising) of expression (religious) through a particular means (audio-visual broadcast media) can be justifiably prohibited in these circumstances.
? In light of the invasive nature of broadcast media and the limited level of censorship and the discretion allowed to the State in matters of religious offence, the ban is permissible under Article 10.

Holland v Governor of Portlaoise Prison (HC 2004) Facts

1. The plaintiff claimed that he was the victim of a miscarriage of justice and sought to confer with members of the media while he was in prison in the hopes of interesting them in investigating his situation.

2. The defendant had a policy of refusing access to journalists in the interest of good order and security in the prison. IssueFreedom of expression

Judgment (MacKechnie J)
? The plaintiff is entitled to rely on both the right to communicate (Article 40.3) and the right to express his convictions, opinions and information within his knowledge (Article 40.6.1) in so far as any restriction on them is not necessary to give effect to the sentence of the court.
? These rights, being constitutionally based, require that any abolition, interference, restriction or modification on them be strictly construed with the onus being on the party curtailing them to prove their permissibility - the test is the test of proportionality from Heaney v Ireland (which incorporates an approach similar to that of the ECHR)
? The defendant's policy is at odds with the Rules which delegate power to him - they envisage that a prisoner's requests for visits of this nature be assessed on a case by case basis rather than through a blanket policy.
? Where the defendant decides after an individual assessment to deny a request must have as its objective the incarceration of the prisoner so as to serve his sentence and the maintenance of security discipline and good order in the prison and must pass a proportionality test.
? The right in this case can certainly be the subject of restriction, varying from minimal interference to an outright ban - the more restrictive the interference the greater the justification required.
? In this case the circumstances do not justify a blanket ban.

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