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08. Freedom of Expression
Journalistic access to prisons and the right to freedom of expression and information British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad [2012] EWHC 13 (Admin) (11 January 2012) Summary In early 2012, the British Broadcasting Corporation applied for permission to conduct a face-to-face interview with Babar Ahmad who is currently [...]
Freedom of expression curtailed for ‘unacceptable behaviour’ Naik, R (on the application of) v Secretary of State for the Home Department [2001] EWCA Civ 1546 (19 December 2011) Summary The England and Wales Court of Appeal has upheld a decision to refuse entry to the UK to an Indian national, finding that exclusion on the [...]
Federal Court upholds the right to be free from racial discrimination Eatock v Bolt [2011] FCA 1103 (28 September 2011) Summary Federal Court judge Bromberg J recently held that Herald Sun opinion columnist Andrew Bolt and the Herald & Weekly Times had contravened the racial vilification provisions of the Racial Discrimination Act 1975 (Cth) in [...]
European Court of Human Rights rules on the right to freedom of expression in the context of employment Palomo Sanchez v Spain [2011] ECHR 1319 (12 September 2011) Summary In this case, the Grand Chamber of the European Court of Human Rights considered whether the dismissal of employees for publishing offensive material in a trade [...]
Shock jocks beware: Restrictions on broadcasting offensive material not a disproportionate interference with the right to freedom of expression R (on the application of) v The Office of Communications [2011] EWCA Civ 692 (17 June 2011) Summary This case concerns an appeal against the Divisional Court’s finding that a radio presenter’s right to freedom of [...]
Balancing the right to privacy and freedom of expression: What is the public interest in private affairs? CTB v News Group Newspapers Limited [2011] EWHC 1232 (QB) (16 May 2011) Summary In this case, Eady J of the England and Wales High Court granted an injunction restraining disclosure of the identity of a footballer who [...]
NZ Bill of Rights requires courts to give legislation the meaning which ‘least restricts’ human rights Valerie Morse v The Police [2010] NZSC 45 (6 May 2011) Summary The Supreme Court of New Zealand has found that the right to freedom of expression contained in s 14 of the Bill of Rights Act 1990 (NZ) [...]
Limitations on the Rights to Freedom of Expression and Assembly The Mayor of London (on behalf of the Greater London Authority) v Brian Haw, Barbara Tucker & Charity Sweet [2011] EWHC 585 (17 March 2011) Summary In The Mayor of London v Haw & Ors, the UK High Court considered whether the granting of particular [...]
Right to ‘Polite’ Protest Abdul & Ors v Director of Public Prosecutions [2011] EWHC 247 (Admin) (16 February 2011) Summary This case held that the right to freedom of expression, by way of protest, may be limited in order to maintain public order. Facts This case involved an appeal in the High Court of England [...]
Right to Free Expression and Open Justice may Permit Broadcasting of Evidence Canadian Broadcasting Corp v Canada, 2011 SCC 3 (28 January 2011) Summary The Supreme Court of Canada (the Court) held that the broadcasting of a video recording of a pre-trial statement tendered in evidence at trial may be protected by the right to [...]
Does Criminalisation of Support for an ‘Illegal’ Organisation Violate the Right to Free Expression? Aydin v Germany [2011] ECHR 141 (27 January 2011) Summary The applicant, a Turkish national, brought a claim in the European Court of Human Rights against the Federal Republic of Germany under Article 34 of the European Convention on Human Rights [...]
Shamrocks and Poppies Allowed, but Easter Lilies Likely to Aggravate Donaldson v the United Kingdom – 56975/09 [2011] ECHR 210 (25 January 2011) Summary A majority of the European Court of Human Rights declared that an application concerning a ban on all prisoners in Northern Ireland wearing emblems with a political or sectarian connotation outside [...]
Racial Vilification and the Balancing of Freedom of Expression with Freedom from Discrimination Adan v Denmark, UN Doc CERD/C/77/D/43/2008 (21 September 2010) The Petitioner, Saada Adan, filed a complaint against Denmark with the UN Committee on the Elimination of Racial Discrimination (CERD) alleging violations of the International Convention on the Elimination of All Forms of [...]
Protection of Journalistic Sources: Compulsion to Disclose Information without Review by Independent Body a Breach of Right to Freedom of Expression Sanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (14 September 2010) Journalistic material was seized by public authorities in the course of a criminal investigation despite a confidentiality agreement between the journalists and [...]
Access to Information and Freedom of Expression Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 (17 June 2010) The Supreme Court of Canada held that the right to freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms does not guarantee access to all documents held in [...]
Balancing the Right to Freedom of Expression and the Right to a Fair Trial Toronto Star Newspapers Ltd v Canada, 2010 SCC 21 (10 June 2010) Legislation providing for mandatory publication bans on bail application hearings was upheld by the Supreme Court of Canada as a reasonable compromise between protecting the accused person’s right to [...]
Freedom of Expression and the Protection of Journalistic Sources: When Can a Journalist be Compelled to Reveal their Source? R v National Post, 2010 SCC 16 (7 May 2010) In this case, the Canadian Supreme Court found that the guarantee of freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms [...]
Right to Freedom of Expression Incorporates Positive Right to Freedom of Information XYZ v Victoria Police [2010] VCAT 255 (16 March 2010) In a significant decision, Bell J has held that the right to freedom of expression under s 15(2) of the Victorian Charter ‘incorporates a positive right to obtain access to government-held documents’. His [...]
Hate Speech and the Limits of Freedom of Expression and Religious Belief Whatcott v Saskatchewan (Human Rights Tribunal), 2010 SKCA 26 (25 February 2010) The Court of Appeal for Saskatchewan has unanimously held that four flyers, which contained anti-gay sentiments, were not so extreme as to violate that prohibition on hate speech under The Saskatchewan [...]
Anonymity in Court Proceedings: Balancing the Right to Privacy and Journalistic Freedom Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1 (27 January 2010) The press challenged orders protecting the identity of the appellants from publication based on the right to freedom of expression. The appellants claimed [...]
Freedom of Expression and Protection from Defamation: Striking the Right Balance Grant v Torstar Corp, 2009 SCC 61 (22 December 2009) This Canadian Supreme Court decision draws on the freedom of expression guarantee in the Canadian Charter to establish a new common law defence of ‘responsible public interest journalism’ to an action for defamation. The [...]
The Right to Free Expression and the Protection of Journalistic Sources: When Can a Journalist be Compelled to Reveal their Source? Financial Times Ltd & Ors v United Kingdom [2009] ECHR 2065 (15 December 2009) This decision explores the right to freedom of expression as it applies to the protection of journalists’ sources. The Court’s [...]
Balancing Freedom of Expression and the Right to Privacy BKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) (02 December 2009) In a case concerning the relationship between the right to freedom of expression of media agencies and the right to privacy of nursing home residents, the England and Wales High Court has conducted [...]
Freedom of Information and Security of Prisons Rogers v Chief Commissioner of Police [2009] VCAT 2526 (26 November 2009) In Rogers v Chief Commissioner of Police, VCAT held that CCTV footage and audio tape used for the investigation of an incident that occurred in the Banksia Unit of HM Barwon Prison were exempt from disclosure [...]
Freedom of Information under the Victorian Charter McInnes v Vicroads (General) [2009] VCAT 2342 (4 November 2009) McInnes made an application under the Freedom of Information Act 1982 (Vic) (‘FOI Act’) to VicRoads for a copy of an anonymous letter that VicRoads had received warning that his health might impact on his driving. VicRoads asked [...]
Protesting for Animal Rights and the Right to Freedom of Expression and Assembly Novartis Pharmaceuticals UK Ltd & Ors v Stop Huntingdon Animal Cruelty (‘SHAC’) & Ors [2009] EWHC 2716 (QB) (30 October 2009) The High Court of England and Wales refused to grant amendments to an interim injunction that would have prevented animal rights [...]
Freedom of Information and the Public Interest McIntosh v Victoria Police [2009] VCAT 1868 (16 September 2009) In this case, Bell J held that the Freedom of Information Act 1982 (Vic) should be interpreted consistently with the s 15 of the Charter, which recognises that the right to seek, receive and impart information is an [...]
Freedom of Information and Access to the Courts Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21 (13 August 2009) On 13 August 2009, the Constitutional Court of South Africa handed down a decision regarding the rights of access to court and access to information. The Court determined that, in certain [...]
Freedom of Information, Freedom of Expression and the Charter Smeaton v Victorian WorkCover Authority [2009] VCAT 1195 (5 August 2009) The Applicant sought review of a decision by the Victorian WorkCover Authority to transfer documents that were the subject of a Freedom of Information request by the Applicant to the Ombudsman. The effect of the [...]
Freedom of Religion May be Limited where Effects of Limitation are Proportionate and Justifiable Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (24 July 2009) In a 4:3 decision handed down on 24 July 2009, the Supreme Court of Canada allowed an appeal regarding the constitutionality of a regulation requiring photographs be taken [...]
Freedom of Expression and Restrictions on Political Advertising Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 (10 July 2009) The Canadian Supreme considered advertisements on public buses and held that a policy prohibiting political advertisements amounted to a breach of the right to freedom of expression under [...]
Freedom of Expression and the Restrictions on Advertising regarding Cruel Treatment of Animals Verein Gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) [2009] ECHR 32772/02 (30 June 2009) In VgT v Switzerland (No 2) the Grand Chamber of the European Court of Human Rights held that not only should the State refrain from interfering with [...]
Freedom of Expression and the Right to Privacy: Reporting the Name of a Person Acquitted of Rape Attorney-General’s Reference No 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order [2009] UKHL 34 (17 June 2009) The House of Lords has held that, in the interests of [...]
In this case, the European Court of Human Rights considered the right to freedom of expression in the context of political advertising in the media. This judgment again shows that there must be a reasonable relationship of proportionality between the legitimate aim pursued by a statutory prohibition and the means deployed to achieve that aim. [...]
In this case Vickery J decided that it was appropriate in a free and democratic society to temporarily curtail freedom of media expression to guarantee X the right to a fair trial. Detailed case note.
The European Court of Human Rights held that there was a violation of art 10 of the European Convention on Human Rights when criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public. Detailed case note.
The Supreme Court of Canada has again emphasised the importance of the common law evolving in a manner that is consistent with Charter values. This was a private law defamation case involving a controversial radio talk show host, ‘M’, and a social activist opposed to any positive portrayal of a gay lifestyle, ‘S’. M publicly [...]
In this decision, the UK House of Lords held that a ban on political advertising can be compatible with art 10 of the European Convention on Human Rights. Detailed case note.
In a recent decision, the Victorian Court of Appeal (Warren CJ, Vincent and Kellam JJA) considered the jurisdiction of a trial judge to make suppression orders to restrain an apprehended contempt of court. In doing so, it discussed issues that will be relevant in balancing the Charter right to freedom of expression (protected by s [...]
The UK Court of Appeal has held that the right to freedom of expression and the media’s right to disclose the identities of convicted persons and report in the public interest may outweigh the interests of children of convicted persons and their right to privacy. Detailed case note.
Under ss 17(1)(c) and 17(1)(d) of the Summary Offences Act 1966 (Vic), it is an offence to use insulting words and behave in an insulting manner in a public place. In this decision, Harper J held that these sections are subject to the decision in Coleman v Power (2004) 220 CLR 1 (that is, ‘whether [...]
The European Court of Human Rights recently held that the imprisonment of a journalist for refusing to disclose the identity of a confidential source constituted a violation of the right to freedom of expression under art 10 of the European Convention on Human Rights. Detailed case note.
In a judgment handed down on 15 November 2007, the European Court of Human Rights held that a state’s failure to adequately protect a person from defamation amounted to a breach of art 8 of the European Convention on Human Rights, which enshrines the right to respect for private and family life. The judgment also [...]
To what extent is it acceptable to limit the right to freedom of expression to protect a person’s reputation? A recent decision of the Grand Chamber of the European Court of Human Rights, Lindon v France, considers the question. Detailed case note.
The European Court of Human Rights has held that judicial decisions in defamation proceedings brought against a Moldovan newspaper interfered with its right to freedom of expression, and more specifically its right to disseminate public opinion on a matter of public interest. The decision addressed the permissible limitations on the right to freedom of expression [...]
The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada. While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial [...]
The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada. While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial [...]
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