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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Akdas v Turkey [2010] no. 41056/04

Da VInci Code, The Holy Blood and the Holy Grail,

 

 

Akdas v Turkey [2010]  concerned a violation of Article 10 ECHR by applying disproportionate measures against the applicant for publishing a French erotic novel.

 

The case summary contains 368 words.

Keywords:

International Human Rights Law – French erotic novel – Publication – Seizure and destruction of the book – Fine – Interference – Freedom of expression – Article 10 ECHR – Violation

Facts:

In Akdas v Turkey [2010], the applicant published the Turkish translation of the French erotic novel. The novel contained graphic descriptions of scenes of sexual intercourse, with various practices such as sadomasochism, vampirism and paedophilia.

The Turkish prosecuting authorities sought the applicant’s conviction under the Criminal Code for publishing obscene or immoral material. The Turkish Court sentenced the applicant to a heavy fine. I also ordered the seizure and destruction of all copies of the book. The applicant paid the fine in full.

Then the applicant lodged the application before the European Court of Human Rights (the Court). He complained that there was a violation of his right to freedom of expression under Article 10 of the ECHR on account of his conviction as a publisher and the seizure of the book.

Issue:

Whether there was a violation of Article 10 of the ECHR.

Held:

The Court found in favour of the applicant and gave the following judgment.

First, the Court held that the measures applied by the Turkish authorities against the applicant amounted to an interference with his right to freedom of expression guaranteed by Article 10 of the ECHR. Having established the existence of interference, the Court went on to examine whether the interference had been prescribed by law and pursued a legitimate aim, namely the protection of morals. The Court found that the interference had been prescribed by law and had pursued the legitimate aim of protecting morals.

Second, as regards the necessity and proportionality of the measures applied against the applicant. The Court held that a heavy fine and the seizure of all copies of the book was been proportionate to the legitimate aim pursued and thus not been necessary in a democratic society.

In conclusion, the Court found a violation of the applicant’s right to freedom of expression.

 

Access the full text of the Court’s judgment here.

See our study materials on Human Rights Law.

 

I.A. v Turkey [2005] 9 WLUK 194

Da VInci Code, The Holy Blood and the Holy Grail,

 

I.A. v Turkey [2005] concerned the applicant who published a book containing certain passages that insulted Prophet Muhammad.

 

The case summary contains 398 words.

Keywords:

International Human Rights Law – Publication – Interference – Freedom of expression – Article 10 ECHR – Necessary in democratic society – No violation

Facts:

In I.A. v Turkey [2005], the applicant, the owner of a publishing company, published 2,000 copies of a book addressing theological and philosophical issues in a novelistic style. The Turkish prosecuting authorities charged him with insulting “God, the Religion, the Prophet and the Holy Book” through the publication. The Turkish Court sentenced the applicant to two years of imprisonment and then converted it to a small amount of fine.

The applicant lodged an application before the European Court of Human Rights (the Court). He alleged that his criminal conviction violated his right to freedom of expression guaranteed by Article 10 of the ECHR.

Issue:

Whether there was a violation of Article 10 of the ECHR.

Held:

The Court considered the applicant’s complaint and laid down the following judgment.

First, the Court held that the measures applied by the Turkish authorities against the applicant amounted to an interference with his right to freedom of expression guaranteed by Article 10 of the ECHR. Having established the existence of interference, the Court went on to examine whether the interference was prescribed by law and pursued a legitimate aim, namely the protection of morals. The Court found that the interference had been prescribed by law and had pursued the legitimate aim of protecting morals.

Second, as regards the necessity and proportionality of the measure applied against the applicant. The Court held certain passages in the applicant’s publication attacked the Prophet Muhammad in an abusive manner. So, the measure applied against the applicant by the Turkish Court (small fine) was intended to provide protection against offensive attacks on matters regarded as sacred by Muslims. Moreover, the authorities did not exceed their margin of appreciation, and the Turkish Courts gave relevant and sufficient reasons to justify the measure taken against the applicant. Also, the small amount of fine imposed upon the applicant appeared to be proportionate.

In conclusion, the Court held that Turkey did not violate the applicant’s right to freedom of expression under Article 10 of the ECHR.

 

Applied: Otto-Preminger Institute v Austria (A/295-A) (1995) 19 E.H.R.R. 34, [1994] 9 WLUK 88.

Access the full text of the Court’s judgment here.

References: [2005] 9 WLUK 194; (2007) 45 E.H.R.R. 30; [2008] C.L.Y. 1892.

See our study materials on Human Rights Law.

 

Garaudy v France (dec.) [2003] no. 65831/01

Human Right Law feature

 

Garaudy v France (dec.) [2003] concerned the conviction of the applicant writer for denying the crimes against humanity in one of his publications.

 

The case summary contains 447 words.

Keywords:

International Human Rights Law – Publication – Denying crimes against humanity – Holocaust – Conviction – Freedom of expression – Article 10 ECHR – Manifestly ill-founded

Facts:

In Garaudy v France (dec.) [2003], the applicant, writer and politician, published a book entitled “The Founding Myths of Israeli Politics”. Various passages of the applicants’ book caused public outrage. As a result, four criminal complaints were lodged against him for denying crimes against humanity, publishing racially defamatory statements and inciting racial or religious hatred.

Moreover, the Paris public prosecutor also opened a judicial investigation in respect of the applicant on a charge of denying crimes against humanity. Eventually, the applicant was given a suspended prison sentence and a fine. He was also ordered to pay compensation to the civil parties.

The applicant then brought a complaint before the European Court of Human Rights (the Court). He argued that the imposed sanctions violated his right to freedom of expression under Article 10 of the ECHR. According to him, his book did not deny that the Nazis had committed crimes against the Jews or that these were crimes against humanity, but was a political work whose main purpose had been to criticise the State of Israel’s policies.

Issue:

Whether there was a violation of the applicant’s right under Article 10 of the ECHR?

Held:

The Court considered the applicant’s complaint on merits and gave the following judgment.

At the outset, the Court reviewed its settled practice in respect of the right to freedom of expression under Article 10 of the ECHR. Applying its case-law to the circumstances of the present case, the Court held that in his book the applicant called into question the reality, degree and gravity of historical facts. In particular, the applicant doubted the persecution of Jews by the Nazi regime, the Holocaust and the Nuremberg trials. Denying crimes against humanity is one of the most acute forms of racial defamation towards the Jews.

Moreover, the Court emphasized that denial of historical facts of such type was capable of seriously disturbing public order. Also, such denial adversely affected the rights of others and was incompatible with democracy and human rights. In these circumstances, the Court concluded that the applicant was not entitled to rely on Article 10 of the ECHR to justify the denial of crimes against humanity.

To sum up, the Court considered the applicant’s claim inadmissible as manifestly ill-founded. So, the interference with the applicant’s right to freedom of expression was necessary and proportionate.

 

Access the full text of the Court’s judgment here.

See our study materials on Human Rights Law.