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Summary Human Rights Law - Article 10 (Freedom of Expression)
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Comprehensive summary/exam notes on Article 10 ECHR right to freedom of expression. This document covers the different potential rationales underlying Article 10 (the importance of discovering truth, self-fulfilment, democracy) along with a structured essay plan on whether the law acts in furtheran...

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  • October 7, 2024
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  • 2022/2023
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Article 10 – Freedom of Expression
What is the rationale underlying Article 10 ECHR?
1. The importance of discovering truth:
John Stuart Mill = primary advocate.
Argues that prohibition of true speech is undesirable, an “unwanted
assumption of infallibility” on the part of the State.
It is only because opponents of State measures are free to challenge
their wisdom that the government can ever be confident that its
policies are right and that it is appropriate to legislate.
Further argues that prohibition on false speech is undesirable as people
holding true beliefs will no longer be challenged and forced to defend their
views.
This applies to political/social matters.
BUT – it is less clear how this basis could justify protection of, for example,
artistic or pornographic instances of expression as neither of these would
likely lead to the discovery of truth.
The ECtHR in Muller v Switzerland state that although Article 10
does not specify that freedom of artistic expression comes within its
ambit, it must include freedom of artistic expression “notably with
freedom to receive and impart information and ideas – which affords
the opportunity to take part in the public exchange of cultural,
political and social information and ideas of all kinds.”
What’s more, this theory assumes that truth is the highest public good.
Also, it seems only to protect speech which can be proven as true or false.
BUT – the case law has shown that it is conceptually difficult to distinguish
between facts and opinions, especially in journalism.
2. Free speech as an aspect of self-fulfilment:
This theory posits that freedom of expression is an integral aspect of each individual’s
right to self-development and self-fulfilment.
Restrictions on what we are allowed to say and write, or to hear and read,
inhibit our personality and its growth.
A right to express beliefs and political attitudes instantiates or reflects what it
is to be human.
BUT – as Schauer points out, such theory does not lead to the desired conclusion.
He states that unlike many claimed personal liberties, “such as the use of
narcotics, homosexuality, gambling, and riding a motorcycle without a
helmet”, speech is not obviously self-regarding.
Rather, we speak for the purpose of informing or influencing others
and frequently for the purpose of moving them to action.
While speech can and often does produce good, it often also produces harm.
e.g., to maintain that the newspaper article written about the potential
affairs of the Austrian President’s wife, as was the subject matter of
the case Standard Verlags GMBH v Austria did not cause harm is
implausible.
Such act, and many others, as Schauer points out, cause harm
that, while normally would be taken as sufficient to call for
government intervention, they are nonetheless protection by
principle of freedom of expression (as was the outcome in
Standard Verlags).
Schauer sums this point up perfectly when he states:
“Frequently speech is protected not because it does not harm,
but despite the fact that it does so.”
3. Democracy:

, This turns on one’s view of democracy.
Meiklejohn based his theory of free speech on the concept of self-
government, which he takes to mean popular sovereignty.
For him, therefore, freedom of speech is essential in the sense that it
allows all relevant information to be made available to the sovereign
electorate which can then, on the basis of that information, decide on
policy.
As Schauer puts it, Meiklejohn’s conception of democracy is
“parasitic” on his conception of democracy as the supremacy of the
electorate.
Rests on the idea that officials act as the servants of the electorate.
BUT – linking back to the point made earlier that speech is almost always
other-regarding, speech, even on political matters, can do considerable
damage to important interests.
By accepting popular sovereignty as the premise of democracy we
are precluded from impinging on majority power.
“If the “Argument from Democracy” would allow things to be said
that the people do not want to hear, then the argument is not so much
based on popular will as it is an argument against it” (Schauer).
Equal participation by all is much more fundamental to self-government than is
majority rule.
In this regard, free speech is essential for citizens to understand political
issues in order to participate effectively in the working of democracy and as
such is crucial to the formation of public opinion on political questions and
other issues of public interest.
When conceptualised this way, freedom of expression is crucial for
the development of public opinion in general, on “the whole range of
issues which an intelligent citizen should think about” (Barendt).
Since Meiklejohn first posited his theory, government structures have
arguably become increasingly more complex, and its officials are to be seen
more as elected rulers rather than servants of the electorate (Schauer).
As such, liberty to criticise government is necessary to control the
“instinct for survival” in office, as Schauer terms it, and operates as a
necessary system of checks and balances.
Locke – soft liberalism.
The logic of soft liberalism in encounters with challenges to
political power (or democracy) is that of relative
accommodation and not outright exclusion.
This idea is supported and reinforced by the underlying theme in the ECHR as a
whole about democratic values, specifically through the requirement of the
infringement of the right being “necessary in a democratic society” present in all
qualified rights.

Does the law act in furtherance of the aim of democratic participation?
1. Introduction:
This essay will proceed from the basis that the key aim behind the right to freedom of
expression in Article 10 ECHR is democratic participation – that free speech is
essential for citizens to understand issues of public interest in order to participate
effectively in society and the working of democracy.
This idea is supported and reinforced by the underlying theme in the ECHR
as a whole about democratic values, specifically through the requirement of
the infringement of the right being “necessary in a democratic society”
present in all qualified rights.
Essay will analyse the Court’s treatment of the press and treatment of
politicians/people occupying public positions, showing that, in the majority of cases,

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