Freedom of expression and the media

Résumé du document

There is a general consent that free speech is a good thing. Countries without it are undemocratic, not protecting individual rights. Media has encouraged the exchange of ideas; social networks have helped free speech. Judges who have to decide on free speech cases will try to balance this right with public interest. There can be direct clashes with individual rights such as privacy or reputation. There is a problem with blasphemy, obscene expression, pornography, racist speech: do we have to repress them all or just a narrow category?

This problem of balancing the right to free speech and all these individual rights arises in many situations, but especially in media.
Also, there is a question about the status of journalists: do we have to treat them as a media or as a person?

•The free speech theory.

Two theories can justify free speech:
Instrumental theories or deontological theories:
-Instrumental theories: Mills and the pursuit of truth, the marketplace of ideas, speech and democracy
-Deontological theories: expression and autonomy (Thomas Scanlon). Provides a basis for the protection if rights of individuals whose speech may not be valued under a more instrumental conception of expression (eg expression by young children might be difficult to accommodate with the instrumental theory)

Extraits

[...] Privacy relates to the right to make choices, to act in ways that they do not wish to make public. There is also a child's right to privacy. The idea to protect the choices of the individuals is quite modern. However, sometimes public interest is more important than the right to privacy. When article 10 was introduced in UK law, there was the idea that free speech is superior but today this has changed and this right is balanced with the right to privacy. Article 40.3 of the Irish Constitution protects personal right of the citizens”. [...]

[...] They wanted to name the doctor who was highly criticized. Problem: we are not here to protect experts. The court held that there was no reason why the identity of the expert should be protected. [...]

[...] The court has to wonder what the competing interest is. For example, if contempt of court, the interest is to maintain the authority of the court; if obscenity, the interest is the protection of morals. Von Hannover v. Germany 2006: balancing with another interest: right to privacy. The case is about Princess Caroline. There is a special matter of tolerance according to media expression which is public interest: the interference with freedom of expression had no legitimate aim. So, held in favour of freedom of speech by finding there was a breach of article 10. [...]

[...] A photograph published in a German magazine. She sought injunction but did not obtain it because she is a public figure. There is a public interest in knowing things about the private lives of these celebrities. So she went to Strasbourg and won. The article 8 was discussed. She has a right to privacy notwithstanding the fact that she is a celebrity. Mosley v. UK 2011: he was engaged with prostitutes. There was an inaccuracy in which the orgy was described according to him. [...]

[...] The Supreme Court said the government had the rights to expose it views but had no right to use public funds to promote the yes vote. So, it was unconstitutional. In this case, there are few references to freedom of expression. Then, the government passed the Referenda Act 1998 which draws up documents which are in favour and against. Coughlan v. Broadcasting Complaints Commission 2000: about the divorce referenda. Political parties broadcasted their views about the referenda. However minutes were accorded to the yes vote compared to 10 for the no vote. So, there was a problem of impartiality. [...]