Individual and the State Law Exam with a problem question on Article 10 of the ECHR and an essay on the ECHR's approach to the threshold requirement in Article 15 ECHR. The grades and feedback for each question is shown at the end.
Larry and Shortman Publishing (Hate Speech Act and Public Morals Act)
Is the case within the scope of Article 10?
The writing and publication of the book enjoy a high level of protection under Article 10 even where part of the
contents may shock, offend, or disturb (Handyside v UK). The margin of appreciation afforded is narrow due to
the expression contributing to the public debate (Sunday Times v UK).
Has there been an interference?
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, There have been several interferences with Article 10: Larry’s arrest and prosecution, even despite his
acquittal (Otegi Mondragon v Spain); both applicants’ 2,000 Crilandese pounds fine (Kasabova v Bulgaria);
and the prohibition of further publication of the book in its current form (Cumhueriyet Vakfi and Others v
Turkey).
Is the interference justified?
A. Is it prescribed by law?
Interferences with Article 10 must have some basis in domestic law and be accessible and foreseeable. In this
case, they are all prescribed by statute: the arrest and prosecution under s.2 of the Hate Speech Act and the
fines and ban of publication of the book under s.3 of the Public Morals Act.
B. Does it serve a legitimate aim?
The interferences serve the legitimate aim of the protection of public morality, as prescribed by Article 10(2).
C. Is it necessary in a democratic society?
Although the State is afforded a wide margin of appreciation to decide if there is a pressing social need
(Mouvement raëlien suisse v. Switzerland), as the book is potentially homophobic, it is reasonable to believe
that the public, particularly the concerned minority, would be offended by the expression. Therefore, there is a
pressing social need.
The interferences must also be no greater than necessary. Larry’s arrest and prosecution (albeit acquitted) are
manifestly disproportionate, especially when combined with a fine (Amorin Gietas and Jesus Costa Bordalo v
Portugal), due to the chilling effect they have on Article 10, rendering it very difficult to justify by reference to
the protection of public morals (Eon v France). Independently, the fines may be justifiable, although 2000
Crilandese pounds is a sizeable amount. Whilst this may be reasonable for Shortman publishing as a
company, it may be overly harsh economically on Larry as an individual (Delfi AS v. Estonia). The ban of
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