Freedom of Expression

4 - Chapter III - Jurisprudence (continued)

b)     Prior Censorship


22.       In its 2002 Report on Terrorism and Human Rights, the Inter-American Commission on Human Rights recognized that "[T]he case law of the European Human Rights system can serve as relevant indicator of the application of the issue of prior censorship at the regional level, in particular considering its considerable number of cases dealing with freedom of expression.  Notwithstanding the fact that the European Human Rights System does not recognize the same absolute ban on prior censorship as in the inter-American system, its institutions have also been reluctant to allow prior restraints on dissemination of expression, as illustrated in the 'Spycatcher cases' (…)."[13]  In the following cases, the European Court analyzes cases of prior censorship to determine whether the restrictions imposed are prescribed by law and necessary in a democratic society, according to the requirements of Article 10, Section 2 of the European Convention.


i)          Handyside v. The United Kingdom


23.       In the 1976 case of Handyside v. The United Kingdom,[14] the applicants, a publishing firm, published "The Little Red Schoolbook," which was intended for, and made available to, schoolchildren of the age of twelve and upwards.  The book contained chapters on sex, including sub-sections on issues such as contraceptives, pornography, homosexuality, and abortion, and addresses for help and advice on sexual matters.  The book had first been published in Denmark and subsequently in several European and non-European countries.  After receipt of a number of complaints, the applicant's premises were searched and copies of the books were seized.  The applicant was arraigned before a court and found guilty on two counts of having in his possession obscene books for publication for gain.  He was fined and ordered to pay costs.  The court also made a forfeiture order for the destruction of the books by the police.  The conviction was upheld on appeal, and the books seized were then destroyed.  A revised edition of the book was later published after alterations were made to the text and certain offensive lines were re-written or eliminated.


24.       The Court decided that there had not been a violation of Article 10 of the European Convention, considering that the applicants' conviction constituted an interference with the right to freedom of expression which had been "provided by law" and pursued the legitimate aim of protecting morals.  At issue was whether the interference had been "necessary in a democratic society."  In this respect, the Court assessed that in the field of "protecting morals," it was impossible to find in the domestic law of the various contracting states a uniform European conception.  For this reason, and interpreting that the adjective "necessary" is not synonymous with the terms "indispensable" or "absolutely necessary" found in other provisions of the Convention, the Court concluded that it is appropriate to leave Contracting States a margin of appreciation in assessing the "pressing social need implied by the notion of "necessity."  The European Court underscored that the proportionality of a restriction to the legitimate aim it is to serve is implicit in the concept of "necessity."  The Court esteemed that in this case, the restriction applied was proportionate to the aim of the restriction, as applying lesser restrictions would likely not have achieved the desired outcome.  Furthermore, the Court considered that the fact that no proceedings had been instituted against the revised edition, which differed extensively from the original edition on the points at issue, suggested that the authorities had wished to limit themselves to what was strictly necessary.


25.       The Court also stated that it was necessary to pay the utmost attention to the principles characterizing a "democratic society."  In particular, it held that:


Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to [legitimate restrictions] it is applicable not only to "information" or "ideas" that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society." This means, amongst other things, that every "formality," "condition," "restriction" or "penalty" imposed in this sphere must be proportionate to the legitimate aim pursued.[15]


ii)         The Sunday Times v. The United Kingdom


26.       In the 1979 case of The Sunday Times v. The United Kingdom,[16] the European Courtdetermined that there had been an interference with the right to freedom of expression and a violation of Article 10 of the European Convention.  In this case, a British drug company had manufactured and distributed drugs containing thalidomide, which allegedly caused birth defects in babies born to mothers who had used these drugs during pregnancy.  The drugs were withdrawn from the market in 1961.  Numerous parents of babies born with birth defects subsequently brought lawsuits against the company.  In 1972, while many of the lawsuits were still in settlement negotiations, the applicant newspaper published an article criticizing the settlement proposals, as well as various aspects of domestic law in personal injury cases, and complaining of the delay that had elapsed since the births.  A footnote to the article announced that a future article would trace how the tragedy occurred, including an investigation into whether the drug company had carried out proper tests on the drug, and whether it had been aware that thalidomide could have a negative impact on the unborn.  The attorney general applied for and was granted an injunction restraining publication of this future article on the grounds that it would constitute contempt of court.  The applicant applied for the injunction to be lifted but was ultimately unsuccessful.  The injunction was finally lifted in 1976, after a settlement had been reached and approved by the courts.  The article was published four days later.


27.       Regarding the question of whether the injunction was “provided by law,” the Court noted that two constant principles had been relied on throughout the Appeals process: the pressure principle (the deliberate attempt to influence a proceeding) and the prejudgment principle (causing public prejudgment of issues raised in pending litigation).  The Court considered that there had been no doubt that these had been formulated with sufficient precision to enable the applicants to foresee to the appropriate degree the consequences which publication of the draft article might entail, and concluded that the injunction was “provided by law”.  Further, the Court held that the expression "provided by law" implied at least two requirements:


First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.  Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.  Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable.  Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.  Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.[17]


28.       On the issue of whether the law of contempt of court served a legitimate aim, the applicants contended that the law was designed to prevent interference with recourse to the courts and to avoid the danger of prejudgment.  The Court concluded that the law of contempt of court served the legitimate aim of safeguarding the authority and impartiality of the judiciary. 


29.       As regards the issue of whether the injunction was "necessary in a democratic society", the Court found that the interference did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the European Convention.  The Court considered that the effect of the article, if published, would have varied from reader to reader.  Accordingly, it was unlikely that publication would have had adverse consequences for the authority of the judiciary, as contended.  The Court added that the thalidomide disaster was a matter of undisputed public concern, as the families of numerous victims of the tragedy had a vital interest in knowing all the underlying facts and the various possible solutions.  The Court further stated that:

[W]hilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them.[18]

[The right to freedom of expression] guarantees not only the freedom of the press to inform the public but also the right of the public to be properly informed.[19]

iii)         The “Spycatcher” cases


30.       The Court decided that the right to freedom of expression had also been violated in the 1991 cases of The Sunday Times v. The United Kingdom (No. 2)[20] and The Observer and Guardian v. The United Kingdom.[21]  In these cases, a
former member of the British Security Service had written his memoirs, entitled "Spycatcher", which contained allegations of serious malpractice and illegal conduct by that Service.  The book had been due to be published in Australia when the British government instituted proceedings there for an injunction on the grounds that the author had received the information contained in the book under an obligation of confidence.  Proceedings were instituted in the English courts and interim injunctions were obtained, restraining any further publication of the kind in question pending the substantive trial of the action in Australia.  The Sunday Times, a Sunday newspaper, was restrained by various injunctions from publishing details of the book "Spycatcher".  Whilst the Australian proceedings were still pending, two other newspapers, the Observer and the Guardian, published short articles on their inside pages reporting on the forthcoming hearing in Australia and giving details of some of the contents of the manuscript of "Spycatcher".  Subsequently, proceedings were instituted against the Observer and the Guardian for breach of confidence; the Attorney General also sought and was eventually granted injunctions restraining them from making any publication of "Spycatcher" material.  When it was announced that "Spycatcher" would soon be published in the United States, the Sunday Times printed the first installment of extracts from "Spycatcher", timed to coincide with publication of the book in the United States.  Proceedings for contempt of court were instituted against the Sunday Times on the ground that the publication frustrated the purpose of the original injunctions against the Observer and the Guardian, and a temporary injunction was granted against the Sunday Times restraining them from publishing further installments for one week.  A substantial number of copies of the book had been brought into the UK by British citizens who had visited the U.S. or who had purchased it by mail order from U.S.bookshops.  "Spycatcher" was published in Australia, and also went on sale in Canada, Ireland and various other European countries as well as in Asia.  However, a varied version of the injunction restraining the Sunday Times from publishing details from the book remained in place until after the conclusion of both the Australian proceedings as well as the contempt of court proceedings that had been commenced against the newspaper.


31.       In the Sunday Times case, regarding the issue of whether the injunctions in question had been "necessary in a democratic society," the European Court reached a negative conclusion, finding that there had been a violation of Article 10 of the European Convention.  In the submission of the Government, the continuation of the interlocutory injunctions remained "necessary," in terms of Article 10 (art. 10), for maintaining the authority of the judiciary and thereby protecting the interests of national security.  The Government argued that, notwithstanding the United States publication: (a) the Attorney General still had an arguable case for permanent injunctions against the applicant, which case could be fairly determined only if restraints on publication were imposed pending the substantive trial; and (b) there was still a national security interest in preventing the general dissemination of the contents of the book through the press and a public interest in discouraging the unauthorized publication of memoirs containing confidential material.  The Court considered that the fact that the further publication of "Spycatcher" material could have been prejudicial to the trial of the Attorney General's claims for permanent injunctions was certainly, in terms of the aim of maintaining the authority of the judiciary, a "relevant" reason for continuing the restraints in question.  The Court found, however, that under the circumstances, it did not constitute a "sufficient" reason for the purposes of Article 10. 


32.       As regards the interests of national security relied upon, the European Court in the Sunday Times case observed that while the injunctions had originally been sought on the basis of breach of confidence, after the book had been published in the U.S. and had lost its confidential character, the purpose of the injunctions had become confined to "the promotion of the efficiency and reputation of the Security Service", in particular by preserving confidence in that Service on the part of third parties, making it clear that the unauthorized publication of memoirs by its former members would not be countenanced, and deterring others who might be tempted to follow in the author's footsteps.  These objectives were found not to be sufficient to justify the injunctions.  Additionally, the Court pointed out that it was not clear whether the actions against the applicant could have served to advance the attainment of these objectives any further than had already been achieved by the steps taken against the author himself.  Moreover, continuation of the restrictions after its U.S.publication prevented newspapers from exercising their right and duty to purvey information, already available, on a matter of legitimate public concern.


33.       Regarding the requisite that the restrictions in the Observer and Guardian case be prescribed by law, the applicants submitted that the legal principles upon which the injunctions were granted were not sufficiently foreseeable.  The principles were derived from the common law, and had never before been applied in a case similar to theirs. However, the Court considered that since the principles were expressed to be of general application, they had from time to time to be used in novel situations. Their utilization on this occasion involved no more than the application of existing rules to a different set of circumstances. In any event, having examined the common law principles applicable, the Court had no doubt that they were formulated with a degree of precision that is sufficient in a matter of this kind. The restriction was therefore "prescribed by law."


34.       Regarding the requisite that the restrictions in the Observer and Guardian case were "necessary in a democratic society," the European Court distinguished two phases in the development of the facts of the case.  During the first period, before "Spycatcher" had been published in the U.S., the applicants had published two articles which touched upon allegations in "Spycatcher" of wrongdoing by the Security Service.  Injunctions had been granted on the grounds that the Attorney General was seeking a permanent ban on the publication of "Spycatcher"; to refuse interlocutory injunctions would effectively destroy the substance of the actions and, with it, the claim to protect national security.  These were "relevant" reasons both in terms of protecting national security and of maintaining the authority of the judiciary, and as regards this period the injunction could be justified as "necessary in a democratic society".  As regards the second period, after Spycatcher had been published in the U.S., the Court observed that the Attorney General's case underwent a metamorphosis.  On July 14, 1987, "Spycatcher" was published in the United States, meaning that the contents of the book ceased to be a matter of speculation and that their confidentiality was destroyed.  The continuation of the injunctions after July 1987 prevented the newspapers from exercising their right and duty to purvey information, already available, on a matter of legitimate public concern.  Therefore, after July 30, 1987, the interference complained of was no longer "necessary in a democratic society".  Thus, the Court concluded that there had been a violation of the right to freedom of expression in the second period but that there had not been a violation of this right in the first period.


iv)        Wingrove v. The United Kingdom


35.       In the 1996 case of Wingrove v. The United Kingdom,[22] the European Court found that the right to freedom of expression had not been violated.  The applicant was a film director who wrote the script and directed the making of a video entitled "Visions of Ecstasy," which featured St. Teresa and Christ engaging in sexual activities.  The applicant submitted the film to the British Board of Film Classification in order to be able to supply it to the public legally, and the Board rejected classification on the ground that the film was considered to be blasphemous. 


36.       In considering whether the interference was "provided by law," the Court stated that the relevant laws must be “formulated with sufficient precision to enable those concerned—if need be, with appropriate legal advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail."[23]  In addition, the Court noted that a law that “confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference"[24]  The Court recognized that “the offence of blasphemy cannot by its very nature lend itself to precise legal definition.  National authorities must therefore be afforded a degree of flexibility in assessing whether the facts of a particular case fall within the accepted definition of the offence".[25]  The Court also noted that there was no general uncertainty or disagreement between the parties regarding the definition of blasphemy in English law.  After viewing the film, the Court concluded that the applicant could reasonably have foreseen that his film could be considered blasphemous.  Because the law afforded the applicant adequate protection against arbitrary interference, the Court considered that the restriction was “prescribed by law.”   Considering the legitimacy of the blasphemy law, the European Court considered that the aim of the law was to protect Christians and those in sympathy with the Christian faith, from feeling insulted or outraged.  This corresponded to the protection of others contained in Article 10(2).  The Court considered that whether there was a real need for protection was an issue regarding the necessity of the interference, as opposed to its legitimacy.  The Court also noted that the fact that the law protected only Christianity and not other religions did not detract from the legitimacy of the aim pursued.


37.       In determining whether the interference was “necessary in a democratic society”, the Court recognized that strong arguments for the abolition of blasphemy laws existed, such as their discriminatory nature.  On the other hand, the Court considered that there was no uniform set of morals nor conception of the requirements of “the protection of the rights of others” in relation to attacks on religious convictions in Europe.  Moreover, there was insufficient agreement in the legal and social sense among the member states of the Council of Europe regarding the issue of whether censoring blasphemous material was unnecessary in a democratic society.  The Court maintained that states are in a better position than an international body to determine what will substantially offend individuals, particularly when religious persuasion varies according to place and time.  The Court supported this assertion with the proposition that a wide "margin of appreciation" is available to states when regulating expression that relates to "matters liable to offend intimate personal convictions within the sphere of morals, especially religion," whereas states have less freedom to restrict political speech or debate of matters affecting the public interest.  The Court considered that it is still necessary for the Court to supervise states' compliance with their obligations to prevent risks of arbitrary or excessive interference, particularly with regard to the "breadth and open-endedness" of the concept of blasphemy and the safeguards inherent in legislation.  The Court recognized that because the restriction was a form of prior censorship, it would subject the restriction to special scrutiny.  The Court stated that the blasphemy did not prohibit the expression of views hostile to Christianity or merely offensive to Christians.  Rather, the laws prohibited that insult to the religion must be severe, as illustrated by the language of the common law—"contemptuous," "reviling," "scurrilous," or "ludicrous."  The Court asserted that the "high level of profanation" that had to be obtained served as a safeguard against arbitrariness.  The Court concluded that the justification of the interference was relevant and sufficient, and the decisions of the national authorities were not arbitrary or excessive; therefore, a violation of the right to freedom of expression was not found.



[13] See IACHR, Report on Terrorism and Human Rights, supra note 2, 194-195.

[14] Eur. Ct. H.R., Case of Handyside v. the United Kingdom, Judgment of December 7, 1976, Application
No. 5493/72.

[15] Id. at para. 49.

[16] Eur. Ct. H.R., Case of The Sunday Times v. the United Kingdom, Judgment of April 26, 1979, Application
Nº 6538/74.

[17] Id. at para. 49.

[18] Id. at para. 65.

[19] Id. at para. 66.

[20] Eur. Ct. H.R., Case of The Sunday Times v. the United Kingdom (No. 2), Judgment of November 26, 199, Application No. 00013166/87.

[21] Eur. Ct. H.R., Case of The Observer and Guardian v. United Kingdom, Judgment of November 26, 1991, Application No. 00013585/88.

[22] Eur. Ct. H.R., Case of Wingrove v. United Kingdom, Judgment of November 25, 1996, Application
No. 00017419/90.

[23] Id., para.40.

[24] Id., para.40.

[25] Id., para.42.