Category: Freedom of Expression

A structure for comparative analysis of Freedom of Expression

| 2 Comments
| Freedom of Expression, Legal Theory

Prof Adrienne Stone, CCCS, via their websiteProf Adrienne Stone (pictured left), Director of Centre for Comparative Constitutional Studies in the Melbourne Law School has just made a very interesting article available on SSRN. It is The Comparative Constitutional Law of Freedom of Expression, forthcming as a chapter is in Rosalind Dixon and Tom Ginsburg (eds) Research Handbook in Comparative Constitutional Law (Edward Elgar, forthcoming, 2011). Stone argues:

Freedom of expression is among the most widely protected of constitutional rights. Rights of freedom of expression can be found in constitutions drawn from all continents. … Even in those few democracies without comprehensive constitutional protection of rights, freedom of expression finds constitutional protection in other ways. It can plausibly be argued that parliamentary systems … – even in the era before the adoption of charters of rights – recognized a constitutional principle of freedom of expression that, though not enforceable by judicial review, was understood as a fundamental value that informed the reading of statutes and the common law. In addition, there are some legal systems that recognize a judicially enforceable principle of freedom of expression despite the absence of a written constitutional right.

… some scholars … question whether … the comparing free speech principles across constitutional systems is practical or useful for courts interpreting or applying constitutional principles of freedom of expression … The complexity of (and disagreement about) underlying philosophical commitments, the opacity of judicial decision making, and cultural specificity of any particular body of law, … [are] formidable problems for the comparativists, … and the] case for comparativism may be weaker in relation to constitutional principles have developed their own rich set of resources and a distinctive conception of freedom of expression.

…

Read More »

Is Apollinaire obscene? The ECHR says: no!

| 5 Comments
| Censorship, ECHR, Freedom of Expression, James Joyce, Obscenity

Cover of 'Les Onze Mille Verges' via AmazonWhen I was growing up, I read a children’s book called The Arabian Nights, an innocent version of the Islamic classic One Thousand and One Nights. Perhaps surprisingly, a group of Egyptian lawyers has recently called for a ban of a newly-released version of the Nights, on the grounds that it is “obscene” and could lead people to “vice and sin”. At the same time, another Egyptian group has called for a ban on the controversial novel Azazeel (Beelzebub) by Youssef Ziedan, which won the 2009 International Prize for Arabic Fiction. And, irony of ironies, just in time for Bloomsday, a manga comic book version of James Joyce’s novel Ulysses had almost been banned from the Apple App Store for obscene images, but Apple then relented, and reversed its earlier decision to remove panels containing nude images, though it still continues to reject less famous apps.

These examples of censorship of literature on the grounds of obscenity are simply the latest instances of a long and dishonourable tradition. In an earlier post, I considered whether Lady Chatterley’s Lover is obscene. In Akdas v Turkey 41056/04 (15 February 2010) (judgment in French; press release in English), the European Court of Human Rights was faced with a similar question earlier this year, when it had to consider whether a Turkish ban on Guillaume Apollinaire‘s Les Onze Mille Verges (or, The Eleven Thousand Rods) was consistent with Article 10 of the European Convention on Human Rights.…

Read More »

The Irish Times goes to Strasbourg

| 5 Comments
| ECHR, Freedom of Expression, Journalists' sources

ECHR, via the ECHR siteStrasbourg is a beautiful city: it possesses a magnificent gothic cathedral; the Grande île is a UNESCO World Heritage site; and it is home to many European institutions, including the the European Court of Human Rights (ECHR, pictured left). It is a city with which Geraldine Kennedy, the Editor of the Irish Times, and Colm Keena, that paper’s Public Affairs Correspondent, will become very familiar, as they bring an exceedingly important case to the ECHR.

In Mahon Tribunal v Keena (No 1) [2009] 2 ILRM 373, [2009] IESC 64 (31 July 2009), the Supreme Court held that the Irish Times would not be compelled to disclose the source of a leaked Tribunal document which it had destroyed rather than produce to the Tribunal. Reversing the High Court ([2007] IEHC 348 (23 October 2007)), Fennelly J for a unanimous Supreme Court held:

68. Looking at the High Court judgment as a whole, I have come to the conclusion that the great weight which it attached to the reprehensible conduct of the appellants in destroying documents led it to adopt an erroneous approach to the balancing exercise.

69. According to the reasoning of the European Court in Goodwin [v United Kingdom 17488/90, (1996) 22 EHRR 123, [1996] ECHR 16 (27 March 1996)], an order compelling the appellants to answer questions for the purpose of identifying their source could only be “justified by an overriding requirement in the public interest.”

…

Read More »

The impact of the UK’s libel amendments on Irish law

| 4 Comments
| Defamation, Defamation Act 2009, Freedom of Expression, Libel tourism, libel tourism

Reform of the UK’s libel laws could have interesting consequences for Irish law. A cartoon from a story in this week’s Economist sets the scene:


Cartoon from the Economist, via their blog

A few extracts from the article accompanying the above cartoon:

Improving a reputation

England’s strict libel laws face a shake-up

Selling legal services to people in other countries is a lucrative business for Britain, but where the libel industry is concerned the trade is increasingly unwelcome. Foreigners can sue each other in English courts, even when publication has been almost wholly elsewhere. .. For foreigners and locals alike, mounting a defence is costly and tricky. …

The fear of libel suits may chill academic debate (big medical companies have sued several scientists for criticising their products). Outfits campaigning against beastly regimes abroad say they have had to defang their reports because of the threat of litigation.

Many want the law to be fairer, simpler, quicker and cheaper. … Anthony Lester QC … submitted a private member’s bill which would make most of the important changes that reformers have been seeking. One would replace the flimsy “fair comment” defence (which easily gets tied up in questions of fact) with a new one of “honest opinion”. … A second change would replace the “responsible publication” defence, which puts more weight on procedure than substance, with one of “public interest”.

…

Read More »

Academic Freedom in the Universities Act, 1997

| 6 Comments
| Academic Freedom, Censorship, Freedom of Expression, General, Universities

Academics for Academic Freedom logo, via their siteI’m sorry not to have been able to acknowledge the celebration of AFAF‘s International Academic Freedom Day on the day itself by a wonderful blog carnival on the right to learn, ably convened by Deirdre Duffy, and hosted by the ever-wondrous Human Rights in Ireland blog. I’ve blogged on academic freedom on many previous occasions (see especially here and here), and I’d like here look at some of the Irish legal aspects of the issue.

Section 14(1) of the Universities Act, 1997 (also here) provides that Irish universities have “the right and responsibility to preserve and promote the traditional principles of academic freedom” in the conduct of their internal and external affairs, and that they are entitled to regulate their affairs in accordance with their “independent ethos and traditions and the traditional principles of academic freedom”. This is an important guarantee of institutional autonomy, and is a sine qua non for the right of academics to teach, research, publish and participate in public debate without fear of retribution from their institutions. That right is secured by section 14(2) of the Act, which provides:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

…

Read More »

Rationales for free speech online

| 2 Comments
| Freedom of Expression

EUI panorama, via the EUI websiteAngela Daly, a PhD candidate in Law by the EUI, Florence, has just published a fascinating article on SSRN on the extent to which the existing rationales for freedom of expression apply online.

The abstract provides:

The Internet, and Rationales for Free Expression

The changes to society brought by the Internet have prompted a challenge to orthodoxy in a number of areas of law, Intellectual Property being a notable example. Human rights, especially those related to information, knowledge and ideas, have been drawn into this re-evaluation, with various issues being encountered in practice demanding solutions that accord with respect for rights and freedoms, and with the functioning of this new technology. Nevertheless, the theoretical aspect of human rights in the Internet context has not been so much addressed. The Internet has implications for how rights are conceived, especially the freedoms of speech and expression. This study is an examination of whether the existing rationales for free speech and expression still apply in the context of cyberspace. These rationales, coming mainly from court decisions (in particular, the US Supreme Court) as well as the academic literature (notably Cass Sunstein‘s work), will be examined, alongside observations about the state of play in the Internet, with Yochai Benkler‘s elaboration of the development of “commons-based peer production” initiatives being of particular relevance.

…

Read More »

Denvir on Freeing Speech: the Constitutional War Over National Security

| 5 Comments
| Freedom of Expression

Cover of John Denvir's book 'Freeing Speech' via NYU Press websiteAn extraordinarily important book is published today. It is Freeing Speech: the Constitutional War Over National Security (NYU Press | Amazon | Google Books) by John Denvir, Research Professor of Constitutional Policy at the University of San Francisco School of Law.

From the abstract:

The United States is in the midst of a heated conversation over how the Constitution impacts national security. In a traditional reading of the document, America uses military force only after a full and informed national debate. However, modern presidents have had unparalleled access to the media as well as control over the information most relevant to these debates, which jeopardizes the abilities of a democracy’s citizens to fully participate in the discussion. In Freeing Speech, John Denvir targets this issue of presidential dominance and proposes an ambitious solution: a First Amendment that makes sure the voices of opposition are heard.

Denvir argues that the First Amendment’s goal is to protect the entire structure of democratic debate, even including activities ancillary to the dissemination of speech itself. Assessing the right of political association, the use of public streets and parks for political demonstrations, the press’ ability to comment on public issues, and presidential speech on national security, Denvir examines why this democratic model of free speech is essential at all times, but especially during the War on Terror.

…

Read More »

Political advertising from Ireland to Switzerland

| 8 Comments
| advertising, ECHR, Freedom of Expression

IBI logoSection 41(3) (also here) of the Broadcasting Act, 2009 provides:

A broadcaster shall not broadcast an advertisement which is directed towards a political end or which has any relation to an industrial dispute.

Earlier this week, at the annual conference of the Independent Broadcasters of Ireland, the Chairman of the IBI and CEO of Today FM, Willie O’Reilly called for the repeal of this provision, saying that it was open to challenge in the European Courts. According to the IBI press release:

The ban on paid political advertising applies not just to political parties and election candidates but also to organizations, such as trade unions, promoting issues which are considered to be of a political nature.

There is arguably a strong legal case at European level against Ireland’s current ban in the context of freedom of expression as laid down in the European Convention of Human Rights. The current law is outmoded and inappropriate and it is questionable as to whether it is robust enough to withstand a legal challenge in the European Court.

The simple fact is that the internet has made the ban irrelevant. The Obama campaign was won online and all the party’s in the British election are committed to campaigning intensively online.

…

Read More »

© cearta.ie 2025. Powered by WordPress