Free Law Dissertations - Article 10 States That: Everyone Has The Right To Freedom Of Expression.
Article 10 states that:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
Though the UK has been a partner to the ECHR from its signing in 1950, English law for decades failed to acknowledge freedom of expression as contained in Article 10. Despite not having any enshrined protection of freedom of speech prior to 1997, English law has always maintained that its legal principles and norms afforded sufficient protection to free speech and have historically relied on statutory interpretation when seeking to resolve conflicts between free speech and other rights. The ECtHR has clearly held however that legal norms, unless ‘formulated with sufficient precision’, cannot be regarded as law
One means whereby English law has sought to afford some limited protection to freedom of expression in relation to defamation can be found in the principle that mere insult and abuse could not be deemed as defamatory. In the case of Berkoff v Burchill, however, a description of a plaintiff as ‘hideously ugly’ has been found capable of being defamatory even when dissenting judgement in the same case has pointed to such a holding being a possible infringement on freedom of speech. While ugliness is clearly a subjective concept and it is almost impossible to prove that such a statement specifically lowered the reputation of the claimant in the estimation of normal, right thinking people, the finding in Berkoff is also surprising considering the ECtHR’s many previous judgements demonstrating the inclusive concept of opinions and value judgements and related findings of breached against the UK. In Sunday Times v UK the ECtHR explained that freedom of expression also extended to those ideas that ‘may shock or offend or disturb’ and, in Castells v Spain, further clarified that opinions, speculation and criticisms fell under the protection of Article 10(1).
English law distinguishes between facts and opinions holding justification as one of the defences to libel statements of fact and fair comment being a defence to a defamatory statement of opinion. The ECtHR makes distinctions between facts and value judgements and in many cases an opinion and a value judgement may indeed have the same meaning. While neither English law nor the ECtHR have ventured to define the elusive concepts of opinions or value judgements, it is precisely these subjective concepts which often give rise to contentious suits in defamation.
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