Fuentes Bobo v Spain [2000] (39293/98) ECHR;

Human rights, Producer, Offensive remarks, Media Law

 

Fuentes Bobo v Spain [2000] concerned a violation of Article 10 of the ECHR on account of disproportionate sanction applied against the applicant by his employer.

 

The case summary contains 332 words.

Keywords:

Media Law – Human rights – Producer – Offensive remarks – Dismissal – Article 10 – ECHR – Freedom of expression – European Court of Human Rights – Violation

Facts:

In Fuentes Bobo v Spain [2000], the applicant was a producer for Spain’s State-run TV station. He was dismissed after making offensive remarks about the management of the TV station during a live broadcast. He brought a complaint before the European Court of Human Rights, alleging that his dismissal had violated his right to freedom of expression guaranteed under Article 10 of the ECHR.

Issue:

Whether there has been a violation of Article 10 of the Convention?

Held:

The Respondent Government argued that there had been no interference with the applicant’s rights to freedom of expression and the State could not be held responsible for the applicant’s dismissal. The Court explained that Article 10 of the ECHR also applied to the private relations between employer and employee. The Respondent State had a positive obligation in certain cases to protect the right to freedom of expression.

Further, the Court agreed that the applicant indeed used rude and offensive remarks. Although, the applicant confirmed that he used these remarks as part of a rapid and spontaneous exchange of comments between himself and the radio hosts. Also, these statements were made in the context of a labour dispute.

In these circumstances, the Court concluded that imposition of the maximum penalty (termination of employment) was extremely severe. The TV Station could have applied more appropriate disciplinary sanctions against the applicant for his offensive remarks.

Having regard to the above considerations, the Court concluded that the applicant’s dismissal was not a proportionate measure. Thus, the Court found a violation of Article 10 of the ECHR.

 

See the full text of the judgment here.

References: [2000] 2 WLUK 1024; (2001) 31 E.H.R.R. 50; [2001] C.L.Y. 3466.

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Cream Holdings Ltd v Banerjee [2004] UKHL 44

Human Right Law feature

 

Cream Holdings Ltd v Banerjee [2004] concerned an interim injunction to prevent publication of confidential information prior to trial.

 

The case summary contains 426 words.

Keywords:

Media Law – Human Rights – Interim injunction – Publication of confidential information – Freedom of expression – Threshold – House of Lords

Facts:

In Cream Holdings Ltd v Banerjee [2004], one of the defendants, Ms Banerjee, obtained confidential information from her work, the claimant company (Cream Holdings Ltd). After the defendant’s dismissal from the company, she gave the confidential material to the publishers of two daily newspapers in Merseyside, the Daily Post and the Liverpool Echo. The defendant argued that the confidential information contained illegal and improper activities by the claimant company. The newspapers published articles asserting that one of the directors of Cream Holdings Ltd was bribing a local council official.

Interim injunction

Following the publication of part of the confidential information, the claimant company sought an interim injunction preventing the newspapers from publishing any further confidential information. The judge granted the injunction. The defendant appealed. The Court of Appeal dismissed the appeal and held that the company had “a real prospect at trial”. So, publication of the confidential information prior to trial would not be justified. The case reached the House of Lords.

Issue:

Whether the courts should have granted the interim injunction based on “a real prospect at trial”.

Held:

The House of Lords disagreed with the lower court’s findings. In particular, a principal issue in the present case was to balance the freedom of expression against the prospect of success at trial. The House of Lords did not share the argument that the claimant company was simply required to show “a real prospect of success” to obtain an interim injunction. Instead, the claimant must advance an argument the case will probably succeed at trial. So, the threshold the claimant was required to meet was higher.

Thus, the House of Lords ruled that the courts should be very reluctant to grant interim injunction in favour of a party who is unable to establish that his case will more likely succeed at trial. So, a previous test – “a real prospect of success”, offered a lower threshold.

To sum up, the present case raised a bar for the applicants to obtain an interim injunction in order to prevent the publication of confidential information prior to trial.

 

See the full text of the judgment here.

References: [2004] UKHL 44; [2005] 1 A.C. 253; [2004] 3 W.L.R. 918; [2004] 4 All E.R. 617; [2004] 10 WLUK 325; [2005] E.M.L.R. 1; [2004] H.R.L.R. 39; [2004] U.K.H.R.R. 1071; 17 B.H.R.C. 464; (2005) 28(2) I.P.D. 28001; (2004) 101(42) L.S.G. 29; (2004) 154 N.L.J. 1589; (2004) 148 S.J.L.B. 1215; Times, October 15, 2004; [2005] C.L.Y. 2041.

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Handyside v UK [1976] 12 WLUK 53 ECHR

TV camera, Criticism and Review

 

Handyside v UK [1976] is a landmark case concerning freedom of expression.

 

Keywords:

Media Law – Human rights – Book – Obscenity – Article 10 – Freedom of expression – European Court of Human Rights (ECtHR) – Convention – No violation

Facts:

In Handyside v UK [1976], the applicant book publisher, Mr Handyside, published a book called “The Little Red Schoolbook”. The book was intended for children ages 12 and above. The book’s chapter concerning pupils contained information about sexual subjects, such as pornography, abortion and masturbation, and illegal drug use.

The British authorities seized and destroyed the copies of the book. The applicant brought a complaint before the ECtHR. He alleged a violation of his right to freedom of expression under Article 10 of the Convention and right to peaceful enjoyment of his property under Article 1 of Protocol No. 1 of the Convention.

Issue:

Whether the UK government’s action violated Article 10 and Article 1 of Protocol No. 1 of the Convention?

Held:

The ECtHR ruled against Mr Handyside (the applicant) and found no violation of Article 10 and Article 1 of Protocol No. 1 of the Convention.

Alleged violation of Article 10

In particular, the Court considered whether the materials in the book were obscene. If so, whether the publication of book was justified as being for the public good.

To determine the obscenity of the materials, the ECtHR considered whether the material had a “tendency to deprave and corrupt”. The Court concluded that “The Little Red Schoolbook” was obscene. Moreover, the Court noted that the book may encouage potentially illegal activities, including underage sex and drug usage.

However, even though the Court considered the book obscene, it would allow publication of the book if it was for the “public good.” Although, it was found that the applicant could not prove that the publication of the book was for the “public good”.

Finally, the Court noted that freedom of expression “constitutes one of the essential foundations of such a [democratic] society” and is “one of the basic conditions for its progress and for the development of every man.” However, the ECtHR ruled the applicant in exercising his freedom of expression, did not undertake the “duties and responsibilities” attached to freedom of expression in a democratic society.

Alleged violation of Article 1 of Protocol No. 1

As regards a violation of a right to peaceful enjoyment of property, the ECtHR held that seizure and destruction of the applicant’s property were justified since the books were lawfully deemed to be “illicit and dangerous to the general interest.”

 

See the full text of the judgment here.

References: [1976] 12 WLUK 53; (1979-80) 1 E.H.R.R. 737.

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The Sunday Times v UK (No. 2) (13166/87) ECHR

International Human Rights Law Study Module feature

 

The Sunday Times v UK (No. 2) concerned a violation of Article 10 of the ECHR on account of injunctions against the publication of a book written by a wormer spy.

 

The case summary contains 326 words.

Keywords:

Media Law – Human rights – Book – Publication – Injunctions – Article 10 – ECHR – Freedom of expression – European Court of Human Rights

Facts:

In The Sunday Times v UK (No. 2), a former spy, employed by the British Security Service (MI5), wrote a book of his memoirs named “Spycatcher”. Initially, he tried to publish the book in Australia. However, the Attorney General of England and Wales began litigation proceedings in the Australian courts. The court allowed the publication of that book and held that the book would not be detrimental to the British Government or the Security Service.

At the same time, in the United Kingdom proceedings were initiated against the Observer and the Guardian. As a result, the Court of Appeal upheld the injunctions against the publication of the book. Despite these injunctions, the Sunday Times published the extracts from “Spycatcher”.

The matter came before the European Court of Human Rights.

Issue:

Whether the injunctions against the publication of “Spycatcher” violated Article 10 of the ECHR?

Held:

Alleged violation of Article 10

In particular, the Court held that the injunctions violated Article 10 of the ECHR because it was not necessary in a democratic society. In particular, the information contained in “Spycatcher” had been essentially published. So, the injunction against the publication of the book was no longer sufficient in balancing national security interests versus freedom of expression. The Court explained that at the outset the injunctions were imposed for the purpose to keep the secret information. However, later on, these injunctions became unnecessary because the information was no longer secret since “Spycatcher” had been published by different sources and in various countries.

 

See the full text of the judgment here.

References: [1991] 11 WLUK 347; (1992) 14 E.H.R.R. 229.

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Lingens v Austria [1986], (9815/82) ECHR

Human Right, Defamation, Austrian Chancellor, Article 10, ECHR,

 

Lingens v Austria [1986] concerned a violation of Article 10 of the ECHR on account of the conviction of a journalist on charges of defamation.

 

The case summary contains 397 words.

Keywords:

Media Law – Human rights – Conviction of journalist – Defamation – Austrian Chancellor – Article 10 – ECHR – Freedom of expression – Violation

Facts:

In Lingens v Austria [1986], the applicant, a journalist, published two articles where he criticized the Austrian Chancellor. The Austrian Chancellor brought private prosecutions against the applicant under Articles 111 and 112 of the Austrian Criminal Code. The Austrian Court convicted the applicant of the offence of defamation and imposed a fine.

The applicant brought his case before the European Court of Human Rights. He argued that his conviction for defamation breached his freedom of expression under Article 10 of the ECHR.

Issue:

Whether there has been a violation of Article 10 of the ECHR?

Held:

Alleged violation of Article 10

Firstly, the Court found that the conviction amounted to an interference with the applicant’s right to freedom of expression. Such interference could be justified if it was “prescribed by law” and “necessary in a democratic society” in pursuit of a legitimate aim. The Court held that the interference was prescribed by law and pursued and pursued the legitimate aim of protecting the reputation of others.

In the present case, a major discussion concerned whether the interference with the applicant’s right was “necessary in a democratic society”. Namely, the Court held that the freedom of expression enshrined in paragraph 1 of Article 10 of the ECRH constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress.

In the present matter, the applicant’s articles contained certain undignified expressions which could harm the Austrian Chancellor’s reputation. Also, the articles concerned heated political issues of public interest in Austria surrounding the participation of former Nazis in the governance of the country. So, the Court explained that the applicant’s opinions expressed in his articles were value judgments and the Austrian authorities erred by requesting the applicant to establish the truth of these statements. Thus, the interference with the applicant’s right to freedom of expression was not necessary and proportionate,

To sum up, the Court concluded that the conviction of a journalist for defamation breached Article 10 of the ECHR.

 

See the full text of the judgment here.

References: [1986] 7 WLUK 66; (1986) 8 E.H.R.R. 407.

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