Amie and The Observant

Part A:

The European Convention of Human Rights (ECHR) protects certain rights and freedoms of individuals. These include the freedom of speech and expression (Article 10), right of life (Article 2) and right to liberty and security of person (Article 5).

1. Amie and The Observant

With regard to Amie and The Observant, the issue is whether there is a violation of their right to freedom of speech and expression under the ECHR. Article 10 of the ECHR explains the right to freedom of speech and expression and also the restrictions that can be reasonably imposed on the right.

Although the ZPF was linked with terrorist incidents, the police have been unable to find any evidence to clearly and conclusively prove that members of ZPF were responsible and there is no conviction of any member on any of these charges. The only crimes that members have been arrested for are related to being drunk and disorderly at the demonstration organised by the ZPF. The demonstration sought to protest against the “woke culture of snowflake babies” and the “weakening of Zedland peoples”. The story and photos that were published in The Observant described the ZPF as a ‘neo-Nazi organisation’ and characterised Tallie and Archer as ‘bigoted and irrelevant idiots’ who represent ‘the scumlife of Zedland’. The question is whether the liability arising out of this speech is a violation of Amie and The Observant’s free speech rights.

Freedom of speech and expression is subject only to the restrictions that are provided in Article 10 itself. Barring these restrictions, individuals have the right to free speech and expression not only in terms of the content but also the means taken to express it. Restrictions on free speech and expression are allowed only if they fall within the scope of Article 10(2), which require that such restrictions must be ‘prescribed by law’, be in ‘pursuit of a legitimate aim’, be ‘necessary in a democratic society’. With regard to the first requirement, that the restriction be prescribed by the law, it is necessary that the behaviour that is restricted by determined and certain and not unforeseeable and therefore unjustifiable. In this case, the restriction has come in the form of defamation law, which can be said to be clearly defined and prescribed. However, it is also necessary that the restriction be in ‘pursuit of a legitimate aim’, and is ‘necessary in a democratic society’, which is explained in Lingens v Austria, as the existence of a ‘pressing social need’. States may have social needs that are significant to themselves and not to Europe as a whole and for that reason they may have a margin of appreciation for assessing whether such social needs exist. When such cases come before the European Court of Human Rights (ECtHR), the Court will also determine whether the restriction was proportionate to the legitimate aim. Based on Lingens, it can be said that the liability for defamation was based on the Zedland law and had a legitimate aim to protect reputation of the individuals.

However, with regard to whether there was a pressing social need, as Handyside has clarified, the freedom of expression is an essential foundation of a democratic society. It can be argued that Amie’s article was an opinion made about the demonstration against “woke culture of snowflake babies” and the “weakening of Zedland peoples”, which may present as far-right and therefore, neo-Nazi perspectives. Furthermore, the non application of defences that are allowed under the ECHR jurisprudence is also a point that suggests that there is a breach of Article 10 rights. Journalists are allowed the defences of ‘acting in good faith’ and truth as defences to defamation. The defendant in defamation case should be given the opportunity to prove that there was a sufficient factual basis for allegations. The lapse to allow the defences of good faith and truth may be the ground for considering that Article 10 is breached.

2. Tallie’s family in relation to Article 2 ECHR

The issue in this case is whether Tallie’s family have a remedy under Article 2 of the ECHR for the wrongful death of Tallie.

Article 2 of the ECHR protects the right of life. Article 2(2) provides that violation of right of life does not take place when deprivation of life results from the absolutely necessary use of force for “defence of any person from unlawful violence; to effect a lawful arrest or maintain lawful detention; and for the purpose of quelling a riot or insurrection.” In this situation, Tallie was killed during the demonstration when she was shot dead by a sniper from the Anti-Terrorism Unit, who acted on the belief that she was pulling out a bomb detonator from her pocket when it was actually a pedometer. The police was acting on information that the ZPF members had planted bombs along the route of the left-wing counter demonstration. The question is whether Article 2 is violated in this case. An argument can be made on the behalf of the state that the agents of the state were acting on reasonable belief that Tallie was about to detonate a bomb and the action of shooting her was absolutely necessary to protect other lives. In other words, that this action was taken to advance the positive obligation of the state to protect human life. Zedland can argue that the action taken was absolutely necessary for the achievement of the purpose of saving lives. Zedland may also argue that the authorities had to act under tremendous time pressure with minimal control over the situation. This notwithstanding, Zedland can be made liable under Article 2 for failing to investigate Tallie’s death. In Kaya v Turkey, although there were not facts to show that the State has killed deliberately, breach of Article 2 could still be found for lack of adequate investigation of the death. On this ground, Tallie’s family can ask for relief and independent investigation into her death by Zedland.

3. Archer in relation to Article 5 ECHR

The issue in this case is whether Article 5 rights are violated in the arrest and detention of Archer by the police.

Archer was arrested from the demonstration and taken to the police station where he was made to wait for 9 hours before her was asked detailed questions about whether he or other members have planted the bombs along the route of the demonstration.

Article 5 protects the right to liberty and security of person except where such deprivation happens as per the procedure prescribed by law for, inter alia, lawful arrest or detention effected for the purpose of bringing the person before the competent legal authority on reasonable suspicion of commission of an offence. Article 5 also provides that arrested or detained persons have the rights to be informed promptly the reasons for arrest and brought promptly before a judge.

In this case, Zedland can argue that there was reasonable suspicion that the ZPF members had planted bombs, and this was based on the existence of information that would satisfy an objective observer. There is no need for the evidence before the police to be of the nature that can allow them to bring charges at the time of arrest. On the other hand, Archer can argue that he was not informed of the reasons of arrest promptly. However, Zedland can challenge this by arguing that reasons need not be related in their entirety by arresting officer at the very moment of the arrest and promptness is satisfied if Archer was informed of the reasons for his arrest within a few hours.

Part B:

Article 10 of the ECHR has been considered to be one of the essential foundations of a democratic society. As such, the right to Freedom of Expression can be characterised as a crucial aspect of the ECHR. This is not to say that there are no appropriate limits on this rights since Article 10 itself provides the legal framework within which the limits are placed on the right of free speech and expression. The critical question is how far such constraints are justified or necessary and how the ECHR and ECtHR jurisprudence do make a framework for such necessary limitations on the right of free speech.

Freedom of speech and expression is considered to be the “lifeblood of democracy” because it allows the formation of political debate with the flow of information and ideas and also prevents abuse of power by government and administrative authorities by highlighting their errors. From that aspect, freedom of speech is an important and fundamental right. However, for reasons for public policy and protection of individual rights, it cannot be an absolute right. The restrictions on the right are also provided in Article 10 and the conditions under which these restrictions are to be imposed should be strictly followed to ensure a balance between the rights of free speech with social order. Article 10(2) provides the conditions under which restrictions can be placed on free speech rights; thus, the state can impose restrictions where these are ‘prescribed by law’, are in ‘pursuit of a legitimate aim’, and are ‘necessary in a democratic society’.

One of the important aspects in cases involving restrictions on individuals’ free speech rights is that there is a ‘pressing social need’, due to which the State may place restrictions on the free speech rights. This is relevant to the formation of the states’ assessments of what is needed in their own social contexts, and which may differ from the social contexts of the other states. The ECtHR jurisprudence allows a ‘margin of appreciation’ to the Member States to make assessments of social needs provided that the overarching principles of the ECHR are not repudiated. This aspect of the ECtHR jurisprudence allows the states to formulate reasonable restrictions on the free speech rights but at the same time allows the ECtHR the scope to determine whether these assessments satisfy the general principles of the ECHR. For example, in Lingens, the ECtHR clarified that it could determine whether the restrictions imposed on free speech rights were proportionate to the legitimate aim being pursued by the state.

When formulating an argument on the significance of free speech rights, it is necessary to not lose the sight of the other rights that can be impacted by free speech, due to which it becomes essential to formulate legitimate aims that can be used to restrict free speech rights. Such legitimate aims may include the protection of reputation of others, or the prevention of violence that can be caused due to hate speech under the garb of free speech. What is important is to note that free speech is part of the broader list of rights and freedoms and it would not be possible to prioritise it over the other rights in all situations. For example, hate speech can lead to incitement to violence, which can affect individuals’ right of life and security (Article 2) and in cases where the questions arise as to whether the individual’s right of free speech will be allowed to the extent of posing danger to other people, courts can adopt a balancing approach to conflicting interests. This would necessarily require the court to assess the rights that are being breached by free speech exercise and whether there is scope of restriction within Article 10 itself; there may be no need to go beyond Article 10(2) since this in itself would provide a schema within which the assessment can take place.

In cases where legitimate aims are being pursued by the state in a manner that is proportionate to achieving these, restrictions on free speech and expression may be justified on the basis of Article 10 itself. In that sense, it can be argued that Article 10 did not visualise an absolute free speech right considering that there could be legitimate reasons for restricting these rights in certain conditions. However, it is also important to ensure that the justifications offered by states to limit the individuals’ free speech rights in the name of ‘pressing social needs’ are not framed for the purpose of advancing majoritarian interests or shirking positive obligations owed to minorities to voice their opinions and ideas. This was precisely the case in Handyside v. The United Kingdom, where the state sought to rely on majoritarian conception of morality to restrict the applicant’s expressions in an educational book that dealt with the subject of sex. The ECtHR justified the limitation was justified on public morals. Reliance on majority values and interests to restrict expressions that are thought to be threatening to such values and interests is allowed under the ECtHR jurisprudence by using the criterion that it is ‘necessary in a democratic society’. An example of this restriction can be seen in the case of İ.A. v. Turkey, where Turkey’s conviction of a publisher of a book was held to be not violative of Article 10 where the book was considered to be deeply offensive to Muslims and the content of the book “fell short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim.” The weighing of the individual’s free expression with the majority’s freedom of thought, conscience, and religion led to the scales being tilted in the favour of the latter.

The ‘margin of appreciation’ allows the Member States and the ECtHR to visualise restrictions on the individual rights to free speech by giving the Member States some ‘latitude’ for limiting these rights in the name of ‘pressing social needs’. While it can be argued that some latitude is necessary so as to justify the application of a uniform free speech right across different jurisdictions that form Europe given their diverse social conditions, the doctrine may also become the reason for allowing too much deference to state. This can be illustrated on rights of free speech and other rights around homosexuality, which Member States have been able to limit on the grounds of margin of appreciation. However, the doctrine of margin of appreciation cannot be applied so broadly so as to narrow the scope of the ECHR to provide protections to individuals. As noted in Matúz v. Hungary, the restrictions should be seen to be necessary in a democratic society. This provides the scope for the ECtHR to adjudge restrictions in the name of margin of appreciation on the basis of its own jurisprudence on what is necessary in a democratic society.

To conclude, the jurisprudence of the ECtHR allows the Member States to reasonably restrict individual free speech rights by having regard to the margin of appreciation. However, the broader protection of the ECHR would demand the states’ exercise of such margin to be subjected to the test of what is necessary in a democratic society, which will allow the formulation of a balance between rights of free speech with other rights protected by the ECHR. The restrictions should not be used to promote majoritarian interests at the cost of positive obligation to individual or minorities to voice their opinions and express themselves.

Authorities

Finogenov v Russia App nos. 18299/03  and 27311/03 (ECtHR 20 December 2011).

Fox, Campbell, and Hartley v UK (1990) 13 EHRR 157.

Goodwin v United Kingdom (1996) 22 EHRR 123.

Handyside v United Kingdom (1979-80) 1 EHRR 737.

Hashman and Harrup v United Kingdom (Application no. 25594/94) 25 November 1999.

İ.A. v. Turkey (no. 42571/98, ECHR 2005-VIII).

Jersild v Denmark (1995) 19 EHRR 1.

Kaya v Turkey [2000] ECHR 129.

Lingens v Austria (1986) 8 EHRR 103.

Matúz v. Hungary [2014] ECHR 1112.

McCann and ors v United Kingdom [1995] ECHR 31.

Morice v. France (application no. 29369/10), 23 April 2015.

O’Hara v UK (2002) 34 EHRR 157.

Osman v United Kingdom [1998] ECHR 101.

R v SSHD ex parte Simms [1999] UKHL 33.

Saadi v. The United Kingdom, Judgment 29.1.2008 [GC].

Journals

Arnardóttir OM, ‘Res interpretata, erga omnes effect and the role of the margin of appreciation in giving domestic effect to the judgments of the European Court of Human Rights’ (2017) 28(3) European Journal of International Law 819.

Buyse A, ‘Dangerous expressions: The ECHR, violence and free speech’ (2014) 63(3) International & Comparative Law Quarterly 491.

Gunatilleke G, ‘Justifying limitations on the freedom of expression’ (2021) 22(1) Human Rights Review 91.

Johnson P, ‘Homosexuality, freedom of assembly and the margin of appreciation doctrine of the European Court of Human Rights: Alekseyev v Russia’ (2011) 11(3) Human Rights Law Review 578.