In the much publicised case of Australian Tax Office (ATO) whistleblower Richard Boyle, the South Australian Court of Appeal has found that the Public Interest Disclosure Act 2013 (Cth) (the Act) does not provide whistleblowers with immunity from criminal, civil or administrative liability for actions taken in gathering evidence to support public interest disclosures (PID).
Read MoreThe high-profile dispute between the Office of the eSafety (‘eSafety’) Commissioner and X Corp (formerly known as Twitter) has tested key powers of Australia’s Online Safety Act and stimulated spirited debate on the interplay between online safety laws and rights to freedom of expression. eSafety sought enforcement of a removal notice pertaining to a bundle of content showing the high-profile stabbing in Sydney of Bishop Mar Mari Emmanuel. The Federal Court refused to extend an ex parte interim injunction against X Corp, and held that geo-blocking is a reasonable step for removing content pursuant to a removal notice under section 109 of the Online Safety Act. The judgment suggests Parliament should clarify the meaning of ‘all reasonable steps’ in the context of the Online Safety Act.
Read MoreIn an important decision on protest rights in England, the High Court of Justice has found that amendments made by the Secretary of State to the Public Order Act 1986 (‘POA Act’) were unlawful. The amended regulations had the effect of lowering the threshold of police intervention in protests. In its decision, the Court considered four grounds of challenges and accepted two of them. The decision is useful in understanding what is considered to be unlawful and the limitations in circumventing legislative processes.
Read MoreBy a majority, the High Court of Australia has found Google not liable in defamation when it hyperlinked defamatory material on its search engine. In doing so, the Court found that Google had not acted as the publisher of that material.
Read MoreThe European Court of Human Rights has found that a conviction for the incitement of hatred, violence and discrimination for under Belgian law did not breach a far right Muslim activist's right to freedom of expression, as protected by Article 10 of the European Convention of Human Rights.
Read MoreThe UK Supreme Court has unanimously held that deportation certificates issued by the United Kingdom’s Secretary of State for the Home Department were unlawful. The recipients of the deportation orders in this case were entitled to appeal against the Home Secretary’s immigration decisions by a judicial review procedure to the First-tier Tribunal (Immigration and Asylum Chamber). However, the effect of the deportation orders was that the appeals could only be brought after the appellants’ removal from the UK. This is known as the ‘deport first, appeal later’ policy. The Court found that difficulties with evidence and legal representation meant these appeals were not sufficiently effective.
Read MoreThe United Kingdom Supreme Court found that the Northern Ireland police service wrongly determined that they did not have the power to prevent disruptive and violent protests through a residential area. The Court held that freedom of assembly in article 11 of the ECHR is not absolute and police have a duty to protect others from any violence.
Read MoreThe Grand Chamber of the European Court of Justice (ECJ) found that EU law precludes national laws that allow for the indiscriminate retention of all electronic communications data of all subscribers and users. It also found that national laws must put parameters around the circumstances in which authorities can access the retained data, and in particular access should be:
The Federal Court of Australia has upheld a challenge to a decision by the Launceston City Council to refuse to grant a permit to preach Christian ideology in a public pedestrian mall on administrative law grounds.
Read MoreA US federal court has handed civil rights groups a crucial win ahead of this year's presidential election after ruling that Texas’ restrictive voting legislation has a discriminatory effect on Hispanic and African American voters. The 2011 law requires voters to produce one of a limited number of forms of identification and is the nation’s strictest voter photo ID law, leaving more than half a million eligible voters unable to fully participate in the democratic process. The recent ruling will require that measures are taken to allow disenfranchised voters to participate in this November’s US presidential election.
Read MoreThe Court of Appeal for Ontario has upheld a lower court’s decision to dismiss an application for judicial review of the Law Society of Upper Canada’s (LSUC) decision to refuse accreditation to an evangelical Christian law school. The Court reviewed the LSUC’s decision by reference to the standard of reasonableness and held that, in making its decision, the LSUC reasonably balanced the appellants’ rights to religious freedom against its statutory objective of protecting the ‘public interest’.
Read MoreThe US Supreme Court has held that drugs and drug paraphernalia found after an unconstitutional stop were admissible because of an outstanding arrest warrant against the accused.
Read MoreThe UK Court of Appeal has upheld the exercise of a police power under Schedule 7 of the Terrorism Act 2000 (UK) (the Act) to stop and question a person to determine whether they are or have been 'concerned in the commission, preparation or instigation of acts of terrorism'. Importantly, the Court has also declared that Schedule 7 is incompatible with the right to freedom of expression under article 10 of the European Convention of Human Rights (the Convention), insofar as it applies to journalistic material.
Read MoreJustice Buchanan of the Federal Court has set aside a decision of the Chief of Defence Force (“CDF”) that terminated the commission of Bernard Gaynor, a Major in the Australian Army Reserve of Roman Catholic faith, due to Gaynor’s public comments on social media and his personal website. His Honour held that the decision to terminate Gaynor’s commission imposed an unreasonable burden on the implied constitutional freedom of political communication.
Read MoreThe European Court of Human Rights has reversed the conviction of a former Lithuanian state security agent on charges of genocide in the case of Vasiliauskas v. Lithuania no. 35343/05. In a 9:8 split between the 17 judges of the Grand Chamber, the Court examined the definition of the crime of genocide. Specific attention was given to the question of what constitutes genocide of a 'part' of a group.
Read MoreThe European Court of Human Rights found that the arrest and conviction of peaceful pro-democracy protesters in Azerbaijan was in bad faith and breached the right to freedom of peaceful assembly.
Read MoreThe European Court of Human Rights has recently confirmed that Azerbaijan, in its 2010 parliamentary elections, failed to comply with its European Convention on Human Rights obligations to hold elections under free and fair conditions, and to ensure that individual electoral rights can be exercised effectively. This was not due to a factual finding that there had been electoral irregularities, but rather due to the failure of Azerbaijani authorities to adequately address the applicants’ ‘serious and arguable’ complaints of irregularities.
Read MoreOn 7 October 2015, the High Court upheld the constitutional validity of NSW laws which imposed caps on political donations, banned donations from property developers and prohibited indirect campaign contributions. The Court held that the laws did not impermissibly burden the implied freedom of political communication.
Read MoreOn 26 August 2015, Justice McDonald of the Victorian Supreme Court handed down judgement in a case concerning the local government’s duties to remedy harmful activities of anti-abortionists outside an East Melbourne fertility clinic. His Honour found that although the Melbourne City council (the council) has a duty to remedy nuisances under the Public Health and Wellbeing Act 2008 (Vic) (the Act) and that the anti-abortionists’ activities may constitute a nuisance, nonetheless in this case there had been no actual or constructive failure by the council to perform its duties under the Act.
Read MoreMorice v France, Application no. 29369/10, European Court of Human Rights, 23 April 2015
European Court of Human Rights has found that a lawyer convicted for instigating the public defamation of two judges was denied a fair hearing and that his conviction violated his right to freedom of expression.
Read MoreThe Ontario Court of Appeal in Canada has unanimously held that Toronto Police breached the appellant’s rights to freedom of expression and liberty during the 2010 G20 summit when preventing him from entering a certain part of the city after he did not consent to a search of his belongings. The Court found that such conduct was not authorised as a common law police power.
Read MoreThe Supreme Court of Victoria found that while the police did have the power to conduct a random stop and license check of Mr Kaba, the officers’ subsequent coercive questioning of him disproportionately limited his rights to privacy and freedom of movement under the Victorian Charter and was therefore unlawful.
Read MoreThe High Court has upheld new offence-creating provisions of the Criminal Code Act 1899 (Qld) and new provisions of the Liquor Act 1992 (Qld), introduced as part of a package of legislation intended to deter criminal gangs and criminal organisations, including criminal motor cycle gangs.
In relation to other provisions enacted, the Court found that the plaintiff, a Hells Angel, did not have standing as he had not been charged with a relevant offence and did not contend that he intended or was likely to commit one. Accordingly, his exposure to increased penalties or bail consequences did not constrain his freedom to act.
Read MoreOn 10 October 2014, the Supreme Court of Canada dismissed proceedings brought by the son of a woman tortured in Iran against the Iranian head of state and two other public officials. The Court held that the Iranian officials were immune from the jurisdiction of Canadian courts by virtue of the State Immunity Act RSC 1985, c. S-18 (‘SIA’). In particular, the operation of the SIA does not deprive a person of a right to a fair hearing in accordance with the principles of fundamental justice, nor does it impinge on the right not to be deprived of life, liberty and security of the person
Read MoreThe Full Court of the Federal Court has dismissed an appeal against a decision in favour of the City of Melbourne regarding the Occupy Melbourne protests in 2011.
The decision has implications for how the Charter of Human Rights and Responsibilities Act 2006 applies to public authorities as the Court confirmed the primary decision that the Charter’s obligation ‘to act’ compatibly with human rights does not apply to the making of local laws by a council. In relation to the removal of Ms Kerrison’s “tent dress” at the protest, which was not considered in the primary decision, the Court found the council officers did not breach the right to freedom of expression.
Read MoreThe European Court of Human Rights (‘Court’) has held that a failure to allow the Church of Scientology to register in Russia was in breach of the rights to freedom of religion and freedom of association which are protected under the European Convention on Human Rights (‘Convention’). Russian law required religious groups to be present in Russia for 15 years before applying to be registered. The lack of precision and clarity in the legislation, which, in this case, allowed the Russia Government to delay registration for more than 10 years, rendered the interference unlawful. As for the 15 year requirement, the Court, in obiter, held that such a requirement lacked a legitimate aim
Read MoreThe UK High Court of Justice has dismissed an application seeking judicial review of a decision made by Leicester City Council to close a Council run aged care home. In reaching this decision, Sir Stephen Silber (sitting as a High Court Judge) confirmed that when determining an alleged infringement of a Convention right the enquiry must be whether rights have been violated rather than if they will or may be violated. His Honour also confirmed that the Public Sector Equality Duty (‘PSED’), contained in the Equality Act 2010 (UK) (‘EA’), 'is not a back door by which challenges to the factual merits of the decision may be made'.
Read MoreThe England and Wales Family Court has determined that unrepresented litigants should be funded by the Court where no other public funding is available and the hearing will otherwise contravene the litigant’s right to a just and fair hearing.
Read MoreOn 1 July 2014, the European Court of Human Rights held that a French law prohibiting the concealment of one's face in public places does not breach the European Convention for the Protection of Human Rights and Fundamental Freedoms. Whilst it was held that the prohibition impinges on the freedom of thought, conscience and religion, and the right to respect for private and family life, the government was entitled to impose the prohibition on the grounds that the ban protects the rights and freedoms of others.
Read MoreThe United States Supreme Court has overturned a Massachusetts law creating a 35 foot buffer zone outside reproductive health facilities. The Supreme Court held that the law violates the first amendment of the US Constitution because, while the buffer zone serves the State’s legitimate interests in maintaining public safety and preserving access to healthcare, it ‘burden[s] substantially more speech than is necessary’.
Read MoreThis case concerns the rights a duties of the Canterbury District Health Board (DHB) and the Departments of Corrections (Corrections) concerning the level of medical treatment they must provide a serving prisoner on a hunger strike.
Read MoreIn two judgments handed down on 20 June 2014, the High Court held that section 85 of the Migration Act 1958 (Cth) does not empower the Minister for Immigration and Border Protection to make a determination limiting the number of protection visas that may be granted during a financial year. Accordingly, the Minister's determination of 4 March 2014 limiting the maximum number of protection visas for the financial year ending on 30 June 2014 to 2,733 was invalid.
Read MoreThe England and Wales Family Court adjourned family law proceedings for contact orders where the unrepresented applicant could not afford a lawyer, due to concerns that the hearing may contravene the applicant’s right to a just and fair hearing
Read MoreA Slovenian publisher was successfully sued for defamation for an article criticising a politician for his speech opposing legal recognition of same-sex partnerships. The company claimed that the Slovenian courts’ award of damages against it violated its right to freedom of expression. The European Court of Human Rights found a violation of the right to freedom of expression, as there was a sufficient factual basis for the statements, and in the context of the debate and article as a whole, the criticism could be seen as strong disagreement with the politician’s views, rather than merely an offensive personal insult.
Read MoreThe Church of Jesus Christ of Latter-Day Saints in Queensland undertook a restructure which abolished wards containing predominantly Samoan congregations who conducted services in the Samoan language. The members of those congregations were welcome to attend other congregations, but the services were to be conducted in English and attendees were no longer allowed to use a language other than English in public worship. The Full Court of the Federal Court unanimously held that the Church had not unlawfully discriminated against the Samoan members, contrary to section 9 of the Racial Discrimination Act 1975 (Cth) (RDA), because their rights to freedom of religious expression (and other human rights) were not infringed.
Read MorePolice stopped David Miranda at Heathrow airport and confiscated encrypted National Security Agency material that had originally been stolen by Edward Snowden. Mr Miranda was carrying the data to assist a Guardian journalist. The High Court of Justice of England and Wales rejected Mr Miranda’s arguments that the stop and search had interfered with his right to freedom of expression under English common law and the European Convention on Human Rights. The Court held that it was a proportionate measure in the circumstances, and was a permissible restriction prescribed by law in the interests of national security and safety.
Read MoreThe Canadian Federal Court of Appeal has held that the hate speech prohibitions and penalties contained in the Canadian Human Rights Act are constitutionally valid and do not violate the right to freedom of expression in the Canadian Charter of Rights and Freedoms.
Read MoreThe Supreme Court of Victoria has made its first decision on the 2013 amendments to the Bail Act 1977 (Vic) regarding conditions of bail. The Court held that it is necessary to pay careful attention to proposed bail conditions when determining whether bail should be granted and that conditions must be formulated to meet the individual circumstances of the case taking into account the applicant’s human rights.
Read MoreThe Supreme Court in the United Kingdom recently upheld a ruling by the Court of Appeal that hotel owners Peter and Hazelmary Bull, a Christian couple, discriminated against homosexual couple Martin Hall and Stephen Preddy on the grounds of sexual orientation, when they refused to rent them a double room in their hotel.
Read MoreThe Victorian Civil and Administrative Tribunal has dismissed the claims of 16 police officers (the applicants) that they were discriminated against by the introduction, promulgation and enforcement of a new policy which banned male officers from having long hair or facial hair (other than a moustache). VCAT found that the applicants had been directly discriminated against in the enforcement of the policy, by the threat of disciplinary action, and through an email implying the applicants were unprofessional and not trustworthy. However, that discrimination was not found to be unlawful as it was considered to be authorised by the Police Regulation Act 1958 (Vic) (PR Act). A victimisation claim was also dismissed, as was the applicants’ claims that the respondent had failed to properly consider their right to freedom of expression in the Charter of Human Rights and Responsibilities 2006 (Vic).
Read MoreThe High Court of England and Wales has recognised public nudity as form of expression but held that limiting such expression is valid in the public interest. While the Court agreed that public nudity engages Article 10 of the European Convention on Human Rights (ECHR) being the right to freedom of expression, the court upheld the primary judge's conclusion that there was a pressing social need for the restriction of his right to be naked in the context of this case.
Read MoreTwo prisoners serving life sentences for murder claimed that their rights had been infringed by reason of their prohibition from voting in elections. The United Kingdom Supreme Court unanimously dismissed both appeals.
Read MoreThe High Court of Justice found that the containment of protestors in a “pen” for 75 minutes was not unlawful under either the common law or the Human Rights Act 1998 (UK).
Read MoreDelfi AS v Estonia [2013] ECHR, Application No. 64569/09 (10 October 2013)
The European Court of Human Rights has held that the imposition of responsibility on a news portal company for news article comments written by non-registered users is a justified and proportionate restriction on its right to freedom of expression.
Read MoreCase of Soyler v Turkey, [2013] ECHR, Application No. 29411/07 (17 September 2013)
The European Court of Human Rights has held that Turkish laws which disenfranchise those convicted of intentional crimes are automatic and indiscriminate and thus a violation of article 3 of the European Convention on Human Rights.
Read MoreTaypotat v Taypotat 2013 FCA 192 (13 August 2013)
The Canadian Federal Court of Appeal determined that a minimum education requirement under voting legislation breached the Canadian Charter of Rights and Freedoms by discriminating against the elderly and aboriginal peoples.
Read MoreBanerji v Bowles [2013] FCCA 1052 (9 August 2013)
The Federal Circuit Court of Australia (Court) has left open the possibility for a public servant who criticised the government on her anonymous Twitter account to be dismissed from her employment. The Court rejected the public servant's application for an injunction preventing her dismissal from the Department of Immigration and Citizenship (the Department) and confirmed that there is no unfettered or unlimited right to political expression in Australia.
Read MoreSindacutul 'Pastorul Cel Bun' v. Romania [2013] ECHR 64, (9 July 2013)
The European Court of Human Rights has ruled that preventing priests from forming a trade union in order to protect the autonomy of the Romanian Orthodox Church (Church) is consistent with the European Convention on Human Rights. Although the refusal to allow the priests to form a trade union was an interference with their freedom of association, it was considered to be necessary in a democratic society for the preservation of religious autonomy.
Read MoreAnchugov and Gladkov v Russia [2013] ECHR, Application Nos 11157/04 and 15162/05 (4 July 2013)
The European Court of Human Rights unanimously held that the Russian Federation’s laws denying prisoners the right to vote violated article 3 of Protocol 1 (right to free elections) of the European Convention on Human Rights.
Read MoreShindler v United Kingdom [2013] ECHR, Application no. 19840/09 (7 May 2013)
The European Court of Human Rights has considered whether the United Kingdom's law denying voting rights to those non-resident citizens living overseas for 15 years or more is a contravention of article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court found that the UK laws denying voting rights to persons living abroad for more than 15 years fell within the margin of appreciation afforded to States and did not violate the article 3 right to free elections.
Read MoreAnimal Defenders International v The United Kingdom, [2013] ECHR (Application no. 48876/08) (22 April 2013)
The Grand Chamber of the European Court of Human Rights held, by a majority of nine to eight, that the long-standing ban on paid political advertising on television and radio in the United Kingdom does not contravene the right to freedom of expression in article 10 of the European Convention on Human Rights.
Read MoreCore Issues Trust v Transport for London [2013] EWHC 651 (Admin) (22 March 2013)
The English High Court of Justice held that Transport for London's decision to prevent the Core Issues Trust from advertising a confrontational message against lesbians, gay men, bisexual and transgender individuals on London's bus network did not contravene Transport for London's duty to act compatibly with the European Convention on Human Rights.
Read MoreEon v France, ECHR 2013 (Application No. 26118/10)
The European Court of Human Rights has upheld a French activist’s appeal against a fine for offending the French President when he held a placard with the French equivalent of “get lost, you prick” while the President was at a public event.
Read MoreAttorney-General for South Australia v Corporation of the City of Adelaide and Ors [2013] HCA 3
This High Court decision concerns the scope of the implied freedom of political communication under the Australian Constitution. Specifically, it considered the second part of the test from Lange v Australian Broadcasting Corporation 189 CLR 520 – whether a by-law was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative democracy as the constitutionally prescribed system of government.
Read MoreBikramjit Singh v France, UN Doc CCPR/C/106/D/1852/2008
The United Nations Human Rights Committee has found that France's restrictions on the wearing of religious symbols or clothing in state schools breached a student's right to religious freedom under the International Covenant on Civil and Political Rights.
Read MoreCase of Eweida and Others v The United Kingdom [2013] ECHR, Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10 (15 January 2013)
In four different applications, the European Court of Human Rights considered the balance the state party had purported to strike between religious freedom and the protection against discrimination. In so doing, the Court afforded a significant “margin of appreciation” to the state party.
Read MoreVerlagsruppe News Gmbh and Bobi v Austria [2012] ECHR, Application no 59631/09 (4 December 2012)
The European Court of Human Rights was asked to weigh the right to freedom of expression against the right of individuals to privacy. The Court found that the decision of a domestic Austrian court to restrain publication of a photograph involving a Catholic priest embroiled in a controversy, but not to grant damages for defamation, was a fair balance between articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Read MorePointon v Police [2012] NZHC 3208 (30 November 2012)
The New Zealand High Court dismissed the appellant's offensive conduct conviction for jogging through a public park while naked. The High Court found that the appellant was exercising his right to freedom of expression under section 14 of the Bill of Rights Act 1990 (NZ) , and that the conduct, while "unwelcome", was not sufficiently offensive to amount to a criminal offence.
Read MoreTelegraaf Media Nederland Landelijke Media BV and Others v The Netherlands [2012] ECHR, Application no. 39315/06 (22 November 2012)
The European Court of Human Rights upheld journalists’ right to protect their sources based on the freedom of expression in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court stressed the importance of weighing up the national interest against the need to protect journalistic sources, finding that an independent review process is of paramount importance in maintaining the right to freedom of expression under the Convention.
Read MoreIrina Fedotova v Russian Federation, UN Doc CCPR/C/106/D/1932/2010, 19 November 2012
The Human Rights Committee found the Russian Federation to have acted in violation of Articles 19 (Freedom of Expression) and 26 (Prohibition of Discrimination) of the ICCPR. The case concerned the treatment of LGBT human rights activist Irina Fedotova, who was arrested by the police and fined by a Russian Administrative Court on grounds that she breached legislation on “public actions aimed at the propaganda of homosexuality among minors” after having displayed posters promoting tolerance towards homosexuality near a local school.
Read MoreRedfearn v the United Kingdom (Application no. 47335/06, ECHR, 6 November 2012)
The European Court of Human Rights has held that the UK’s failure to protect a bus driver against unfair dismissal based on his racist political activities was an unacceptable infringement of his freedom of association.
Read MoreLund v Boissoin, 2012 ABCA 300 (17 October 2012)
The Court of Appeal of Alberta distinguished between prohibited "hate speech" and speech that may be hurtful and offensive but which is protected by the freedom of expression in its recent decision of Lund v Boissoin, 2012 ABCA 300.
Read MoreSummary On 11 October the secular High Court in Seremban, Negeri Sembilan state, in Malaysia rejected a request to declare unconstitutional a Sharia law that prohibits “wearing women’s attire” or “posing as a woman” in that State. The four applicants are Muslim transgender women who have all been arrested under this law and contend that it violates their fundamental rights enshrined in the Malaysian Constitution, namely the prohibition of discrimination based on gender, freedom of expression, freedom of movement, and the rights to live with dignity, privacy, and to livelihood.
Read MorePrint Media South Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22 (28 September 2012)
The South African Constitutional Court has enforced the constitutional right to freedom of expression in the recent decision of Print Media South Africa and Another v Minister of Home Affairs and Another. The Court found that recently amended provisions of the Films and Publications Act (No 65 of 1996) infringed the right to freedom of expression found in section 16 of the South African Constitution.
Read MoreCaripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 (27 September 2012)
The Victorian Civil and Administrative Tribunal has ruled that a protestor’s right to privacy was not violated by the Victoria Police’s retention of photographs and video footage taken during a protest. The Tribunal accepted that the records were still needed by Victoria Police for legitimate purposes including planning and briefing for further protests and therefore their retention did not violate Victorian privacy laws.
Read MoreMagee v Delaney [2012] VSC 407 (11 September 2012)
The Supreme Court of Victoria has recently ruled on the scope of the right to freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic). In this case, Justice Kyrou held that the right to freedom of expression under the Charter is not engaged where the expression involves property damage, or threats of property damage.
Read MoreThompson v Police [2012] NZHC 2234 (31 August 2012)
The New Zealand High Court dismissed the appellant's appeal against convictions for disorderly behaviour on the ground that the appellant's conduct did not involve an exercise of her right of freedom of expression pursuant to section 14 of the Bill of Rights Act 1990 (NZ). The High Court found that the appellant’s conduct (“calling for stray cats”) had caused a disturbance which the public could not reasonably be expected to endure.
Read MoreUN Human Rights Committee, Korneenko v Belarus, UN Doc CCPR/C/105/D/1226/2003 (29 August 2012)
Viktor Korneenko resides in Gomel, Belarus, where he was the chairperson of the Gomel regional association of Civil Initiatives. This NGO was involved in election monitoring in Belarus. Civil Initiatives was dissolved by court order after Belarusian authorities fined Korneenko and confiscated the organisation’s computer equipment on the basis that Koreenko had violated a temporary presidential decree banning the use of computer equipment, received as “untied foreign aid”, from being used for political purposes.
Read MoreVictoria Police v Anderson & Ors (2012) Magistrates' Court of Victoria (23 July 2012)
In the Magistrates' Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner's chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.
Read MoreVictoria Police v Anderson & Ors (2012) Magistrates’ Court of Victoria (23 July 2012)
In the Magistrates’ Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner’s chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.
Read MoreMouvement Raelien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012)
This is a decision of the Grand Chamber of the European Court of Human Rights regarding the scope of the right to freedom of expression.
It involves an allegation by the Mouvement Raelien Suisse (Association) that the refusal by the Swiss authorities of the request for the Association to publish its posters in the Neuchatel municipality breached its rights to freedom of religion and freedom of expression, as protected by articles 9 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Read MoreAtasoy and Sarkut v Turkey, UN Doc CCPR/C/104/D/1853-1854/2008 (19 June 2012)
The UN Human Right Committee recently decided that Turkey’s actions in response to Atasoy and Sarkut’s refusal to be drafted for compulsory military service on grounds of conscientious objection was incompatible with article 18 of the International Covenant on Civil and Political Rights.
Read MoreMounted Police Association of Ontario v Canada, 2012 ONCA 363 (1 June 2012)
In Mounted Police Association of Ontario v Canada, the Ontario Court of Appeal considered the scope of the freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. The question for the Court was whether a statutory employee relations regime imposed on the Royal Canadian Mounted Police violated section 2(d) of the Charter. Justice Juriansz, with whom Justices Doherty and Rosenberg agreed, held that this statutory regime did not make it impossible for members of the Police to exercise their fundamental freedom of association. Consistent with this freedom, Police members were able to form independent employee associations to collectively achieve their workplace goals.
Read MoreGamarra v Paraguay, UN Doc CCPR/C/104/D/1829/2008 (30 May 2012)
The UN Human Rights Committee has found that the use of force by the Paraguay police against peaceful demonstrators was disproportionate, constituting a violation of article 7 of the International Covenant on Civil and Political Rights. Paraguay was also found to have contravened article 2, paragraph 3 of the Covenant by depriving the demonstrators with access to an effective remedy in relation to the human rights violations.
Read MoreScoppola v Italy (No 3) [2012] ECHR 868 (22 May 2012)
In this decision, the European Court of Human Rights found that an Italian legislative regime that disenfranchised persons who had been convicted of specific offences and persons sentenced to terms of imprisonment greater than three years did not contravene article 3 of Protocol No 1 to the European Convention on Human Rights, which protects the right to vote.
Read MoreMM and AO (A Child), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 668 (18 May 2012)
This case adds to pre-existing UK and European authority about the circumstances in which an investigation of an allegation of torture or ill-treatment will be required. In this particular case, an intervention to stop a protest at an immigration detention centre caused such physical and psychological harm that a claim of ill-treatment was raised. The question was thus to what extent, especially in cases involving children, an independent investigation was required beyond procedures already in place.
Read MoreNoone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors [2012] VSCA 91 (11 May 2012)
The Court of Appeal has found that operators of a complementary medicine centre specialising in treatment of cancer engaged in misleading or deceptive conduct in trade or commerce in making representations about the efficacy of their treatments. In so doing, the Court overturned a Supreme Court decision. In the decision, the Court considers the relationship between freedom of expression, as protected in the Victorian Charter, and misleading and deceptive conduct.
Read MoreUnited Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130 (30 April 2012)
This decision of the Court of Appeal of Alberta considered the scope of the right to freedom of expression in the Canadian Charter of Rights and Freedoms. This was considered in the context of whether a union had the right to collect and distribute images of people crossing a picket line.
This appeal was brought by the Attorney General of Alberta who argued that the union's collection and use of the images constituted a breach of privacy.
Read MoreLondon Christian Radio & Anor, R (on the application of) v Radio Advertising Clearance Centre & Anor [2012] EWHC 1043 (Admin) (20 April 2012)
The England and Wales High Court held that a statutory prohibition against political advertising did not infringe the right to freedom of expression under article 10 of the European Convention on Human Rights. The Court held that the Radio Advertising Clearance Centre acted lawfully in refusing clearance for a proposed radio advertisement that requested information to “inform public debate” and “help make a fairer society” as the advertisement was directed towards a political end and thus in contravention of the statutory prohibition.
Read MoreClarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 (27 March 2012)
Justice Barker in the Federal Court held that Nationwide News, the publisher of The Sunday Times newspaper in Perth, was liable under section 18C of the Racial Discrimination Act 1975 (Cth) (RDA) for comments posted by readers underneath articles in the online version of the paper, which amounted to racial vilification.
Read MoreLord Carlile and Others and Maryam Rajavi v Secretary of State for the Home Department [2012] EWHC 617 (Admin) (16 March 2012) Summary
In this decision, the High Court of England and Wales considered whether concerns relating to national security justified infringement of the right to freedom of expression. The British Secretary of State for the Home Department refused permission for Iranian dissident Maryam Rajavi to enter the UK to address British parliamentarians at Westminster, allegedly infringing the claimants’ common law and European Convention of Human Rights right to freedom of expression. Although it expressed sympathy with the claimants’ position, the High Court held that the Secretary’s decision to exclude Rajavi was proportionate in light of the Secretary’s concerns for national security and public order.
Read MoreAustin & Ors v United Kingdom [2012] ECHR 459 (15 March 2012)
In 2001, in the context of a demonstration in central London, up to 2000 people were contained within a police cordon (a measure known as "kettling") at Oxford Circus in London without access to food, water or toilets.
The Grand Chamber of the European Court of Human Rights held that this did not amount to a deprivation of liberty under Article 5(1) of the European Convention of Human Rights.
Read MoreThe Mayor Commonalty and Citizens of London v Samede (St Paul's Churchyard Camp Representative) & Ors [2012] EWCA Civ 160 (22 February 2012)
In the High Court of England and Wales, Lindblom J made orders in favour of the City of London (the City) against the defendants, part of the Occupy protest movement, for possession ofa highway and other open land in the churchyard of St Paul's Cathedral, London, where the defendants had set up a protest camp.
Read MoreS.L. v. Commission scolaire des Chênes 2012 SCC 7 (17 February 2012)
The Supreme Court of Canada has upheld the Quebec Superior Court's decision that a state-organised, multi-faith, ethics and religious class did not infringe the right to freedom of conscience and religion. The Court held that determining whether a person's right to religion was infringed required a subjective understanding of the belief alleged to be infringed and objective determination of whether an infringement occurred.
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Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 (10 February 2012) Summary
The England and Wales Court of Appeal held that a hotel policy of providing double rooms only to married persons constituted unlawful direct discrimination on the grounds of sexual orientation against persons in a civil partnership. The hoteliers submitted that the policy, a manifestation of their genuinely held religious beliefs, was protected by articles 8 and 9 of the European Convention on Human Rights. The Court held that, to the extent that anti-discrimination regulations limit such manifestation, the limitations were necessary in a democratic society for the protection of the rights and freedoms of same-sex couples.
Read MoreVejdeland & Ors v Sweden [2012] ECHR 242 (9 February 2012)
The European Court of Human Rights has rejected an application brought by four Swedish nationals who were convicted under Swedish domestic law for making offensive and prejudicial comments against homosexuals. The applicants sought an order from the Court that the convictions violated their freedom of expression as protected under Article 10 of the European Convention of Human Rights. The decision constitutes the first time the Court has applied principles relating to hate speech to comments made against homosexuals.
Read MoreAxel Springer AG v Germany [2012] ECHR 227 (7 February 2012)
The European Court of Human Rights has allowed an appeal by a newspaper publisher against an injunction preventing it from reporting details of criminal proceedings brought against a television actor. The Grand Chamber of the Court found that the injunction constituted an unjustifiable interference with the right to freedom of expression under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Read MoreVon Hannover v Germany (No. 2) [2012] ECHR 228 (7 February 2012)
This case is an application to the European Court of Human Rights by Princess Caroline of Monaco and her husband, Prince Ernst August von Hannover, following the refusal by German courts to prohibit further publication of photos taken of them while on holiday. The Court’s task was to determine whether the manner in which the relevant domestic laws were applied to the applicants infringed their right to respect for their private and family life (guaranteed under article 8 of the Convention). This required an examination of the balance struck between the right to privacy and the right to freedom of expression (guaranteed under article 10).
Read MoreCity of London v Samede & Ors [2012] EWHC 34 (QB) (18 January 2012)
The England and Wales High Court upheld claims brought by the City of London Corporation for possession of highway and other open land in the churchyard of St Paul's Cathedral, London, where the defendants, part of the Occupy protest movement, had set up a protest camp. Lindblom J held that this was a "lawful and justified" interference with the defendants' rights of freedom of expression and association under articles 10 and 11 of the European Convention on Human Rights.
Read MoreBritish Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad [2012] EWHC 13 (Admin) (11 January 2012)
In early 2012, the British Broadcasting Corporation applied for permission to conduct a face-to-face interview with Babar Ahmad who is currently detained in prison without charge and whose extradition has been sought by the USA. The BBC also wished to broadcast parts of the interview in a programme looking at the treatment of detainees like Mr Ahmad and extradition arrangements with the USA. The Secretary of State refused this permission. The High Court of England subsequently held this decision was incompatible with the right to freedom of expression and as such was unlawful.
Read MoreNaik, R (on the application of) v Secretary of State for the Home Department [2001] EWCA Civ 1546 (19 December 2011)
The England and Wales Court of Appeal has upheld a decision to refuse entry to the UK to an Indian national, finding that exclusion on the basis of his public statements constituted a justifiable interference with the right to freedom of expression under the European Convention on Human Rights.
Read MoreSchwabe and M.G. v Germany - 8080/08 [2011] ECHR 1986 (1 December 2011)
The European Court of Human Rights has ruled that the detention of two German citizens, who planned to be involved in protests against the 2007 G8 summit, constituted an unlawful breach of the rights to liberty and security of person and freedom of peaceful assembly under the European Convention on Human Rights.
Read MoreReference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 (23 November 2011)
This case was referred to the Chief Justice of the Supreme Court of British Columbia, Canada to determine the constitutionality of section 293 of the Criminal Code of Canada (establishing polygamy as a criminal offence), in light of the Canadian Charter of Rights and Freedoms.
Read MoreBatty v City of Toronto [2011] ONSC 6862 (21 November 2011)
In Batty v City of Toronto, the Ontario Superior Court of Justice considered an application challenging the constitutional validity of a Trespass Notice issued to a group of protestors on the basis it violated the protestors’ rights under the Canadian Charter of Rights and Freedoms. It was ultimately held that the Notice was constitutionally valid under s 1 of the Charter, which provides that the rights and freedoms set out therein are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The protestors' application was therefore dismissed.
Read MorePalomo Sanchez v Spain [2011] ECHR 1319 (12 September 2011)
In this case, the Grand Chamber of the European Court of Human Rights considered whether the dismissal of employees for publishing offensive material in a trade union newsletter contravened the rights to freedom of expression and freedom of association under articles 10 and 11 of the European Convention of Human Rights. The majority of the Grand Chamber concluded that the dismissals were reasonable and that no contravention of articles 10 and 11 had occurred.
Read MoreNystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011)
On 18 August 2011 the United Nation’s Human Rights Committee published its View adopted in the Communication (Communication No. 1557/2007) submitted by Stefan Lars Nystrom.
In this landmark decision the Committee found that Australia had violated article 12(4) (the right to enter his own country), and articles 17 and 23(1) (protection from arbitrary interference with his family life) of the International Covenant on Civil and Political Rights.
Read MoreSingh v France, UN Doc CCPR/C/D/102/18767/2009 (22 July 2011)
The UN Human Rights Committee recently decided that a French regulation requiring persons to appear bare headed in identity photographs used for residency permits constitutes an impermissible limitation on the applicant’s freedom of religion in violation of article 18 of the International Covenant on Civil and Political Rights.
Read MoreR (on the application of) v The Office of Communications [2011] EWCA Civ 692 (17 June 2011)
This case concerns an appeal against the Divisional Court’s finding that a radio presenter’s right to freedom of expression was not infringed by an adverse ruling of the Broadcasting Code’s statutory regulator (Ofcom). The appellant challenged Ofcom’s finding on the ground that it fell foul of article 10 of the European Convention on Human Rights. Article 10 encompasses the freedom to receive and impart information and ideas without interference, subject to restrictions as prescribed by law and necessary in a democratic society for the protection of the rights of others. The England and Wales Court of Appeal (Civil Division) (EWCA) unanimously dismissed the appeal.
Read MoreCTB v News Group Newspapers Limited [2011] EWHC 1232 (QB) (16 May 2011)
In this case, Eady J of the England and Wales High Court granted an injunction restraining disclosure of the identity of a footballer who had had an extramarital affair. In doing so, the judge first had to consider two competing rights in the European Convention of Human Rights: the right to respect for private and family life (art 8) and the right to freedom of expression (art 10). The judge undertook a balancing exercise to determine the relative importance of the two rights in the circumstances. Given the very personal nature of the information and the lack of any real public interest in disclosure, Eady J held that the right to privacy prevailed.
Read MoreMosley v the United Kingdom (48009/08) (10 May 2011)
The European Court of Human Rights has ruled against former Formula One boss Max Mosley in the latest round of the well-publicised litigation he initiated in 2008 after the UK newspaper News of the World published an article and photographs alleging he had participated in sexual activities with five prostitutes in a London flat.
Read MoreValerie Morse v The Police [2010] NZSC 45 (6 May 2011)
The Supreme Court of New Zealand has found that the right to freedom of expression contained in s 14 of the Bill of Rights Act 1990 (NZ) requires an objective approach to the determination of charges of offensive or disorderly behaviour for the purposes of s 4(1)(a) of the Summary Offences Act 1981 (NZ). The provision is directed at behaviour which, when objectively assessed, disrupts order in, or within view of, a public space. Whether those present are offended as a matter of fact, is only one consideration to be taken into account.
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Moos & Anor, R (on the application of) v Police of the Metropolis [2011] EWHC 957 (Admin) (14 April 2011)
The England and Wales High Court recently concluded that action taken by the police to contain and then later disperse G20 protestors constituted an unlawful use of force, in the circumstances.
Read MoreLautsi & Ors v Italy [2011] ECHR Application No 30814/06 (18 March 2011)
In this case, the Grand Chamber of the European Court of Human Rights held that crucifixes in Italian State schools do not infringe the art 9 right to religious freedom. The case originated in a dispute between a school and a parent and escalated into an international issue with almost all European countries intervening in the final hearing.
Read MoreThe Mayor of London (on behalf of the Greater London Authority) v Brian Haw, Barbara Tucker & Charity Sweet [2011] EWHC 585 (17 March 2011)
In The Mayor of London v Haw & Ors, the UK High Court considered whether the granting of particular orders and injunctions would be a disproportionate interference to various protestors' rights under arts 10 and 11 of the European Convention on Human Rights. Having closely considered the particular facts and circumstances of the various protestors, the Court concluded that the orders and injunctions were not disproportionate.
Read MoreHogan v Hinch [2011] HCA 4 (10 March 2011)
The High Court of Australia has rejected a constitutional challenge to the validity of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (repealed). That provision allowed a court to prohibit the publication of information that might enable the identification of persons convicted of sex offences and who were subject to post-custodial supervision orders. The High Court found that contravention of a suppression order under the Act required knowledge that the contravention order existed. This was found to be consistent with the obligation in s 15(3) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), requiring that restrictions on the right to freedom of expression be 'reasonably necessary' to respect the rights and reputation of other persons.
Read MoreP & Q v Surrey County Council [2011] EWCA Civ 190 (28 February 2011)
This case in the England and Wales Court of Appeal considered what constitutes a deprivation of liberty and the limitations on the right to liberty. It involves consideration of whether the care arrangements for two persons with mental disability resulted in the deprivation of their liberty.
Read MoreJohns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin) (28 February 2011)
The England and Wales High Court recently found that the right to religious expression could be limited where attitudes towards sexuality might impact upon the rights of the child. The applicants, who were prospective foster carers, were found to have exhibited antipathy or disapproval of same-sex relationships or of people who identified as homosexual.
Read MoreAbdul & Ors v Director of Public Prosecutions [2011] EWHC 247 (Admin) (16 February 2011)
This case held that the right to freedom of expression, by way of protest, may be limited in order to maintain public order.
Read MoreCanadian Broadcasting Corp v Canada, 2011 SCC 3 (28 January 2011)
The Supreme Court of Canada (the Court) held that the broadcasting of a video recording of a pre-trial statement tendered in evidence at trial may be protected by the right to freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter), but the protection does not apply in every circumstance. The use of an exhibit tendered in evidence at trial is, subject to any applicable statutory provision, to be determined by the trial judge in accordance with an analysis of the competing factors at stake, including trial fairness and the administration of justice.
Read MoreAydin v Germany [2011] ECHR 141 (27 January 2011)
The applicant, a Turkish national, brought a claim in the European Court of Human Rights against the Federal Republic of Germany under Article 34 of the European Convention on Human Rights (the ‘ECHR’). The applicant alleged that her criminal conviction for breaching a ban on the activities of the Workers’ Party of Kurdistan (‘PKK’) violated her right to freedom of expression.
Read MoreDonaldson v the United Kingdom - 56975/09 [2011] ECHR 210 (25 January 2011)
A majority of the European Court of Human Rights declared that an application concerning a ban on all prisoners in Northern Ireland wearing emblems with a political or sectarian connotation outside of their prison cells was inadmissible.
Read MoreIn the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, 2011 SKCA 3 (10 January 2011)
In a landmark ruling, the Court of Appeal for Saskatchewan, In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995 (Marriage Commissioner Case), held that that a marriage commissioner’s refusal to solemnize same-sex marriage on the basis of religious beliefs is unlawful. The Court held that two proposed amendments to the Marriage Act 1995 would offend the Canadian Charter of Rights and Freedoms and, if enacted, ‘would violate the equality rights of gay and lesbian individuals’.
Read MoreRowe v Electoral Commissioner [2010] HCA 46 (15 December 2010)
The case, which was heard and determined just prior to the 2010 Federal Election was a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006. The Amendment Act resulted in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details. Previously, the electoral roll remained open for a period of seven days after the issue of the writ. The Amendment Act was said to reduce the likelihood of fraudulent voter enrolment and promote electoral integrity.
Read MoreGreens and MT v United Kingdom [2010] ECHR 1826 (23 November 2010)
The European Court of Human Rights recently considered the United Kingdom's continued failure to amend legislation imposing a blanket ban on voting in national and European elections for convicted prisoners in detention in the UK. The Court had considered the same issue five years earlier in Hirst v United Kingdom (No 2), but the UK Government had not taken steps to implement the judgment in that case. In Greens and MT v United Kingdom, the Court applied its ‘pilot judgment’ procedure and gave the UK Government six months from the date the decision becomes final to amend its legislation and remove the blanket ban.
Read MoreR v AM [2010] ACTSC 149 (15 November 2010)
The ACT Supreme Court recently considered to what extent freedom of conscience under the ACT Human Rights Act 2004 (‘the HR Act’) influenced the interpretation of criminal offences. An applicant sought to argue that her consciousness beliefs should provide her a defence to otherwise criminal conduct, and if not, that the Court should issue a declaration of incompatibility on the basis the relevant offence was inconsistent with the HR Act.
Read MoreDuring the coronial inquest into the fatal shooting of a teenager by the Victoria Police, the Victorian State Coroner considered an application by the Chief Commissioner of Police (‘CCP’) for an order prohibiting the publication of certain documents. The application was made pursuant to s 73(2)(b) of the Coroners Act 2008, which states that a coroner must order that a report about any documents, material or evidence provided to the coroner as part of an inquest not be published if the coroner reasonably believes that the publication would be contrary to 'the public interest'. In deciding whether or not to grant the application, the Coroner considered how s 73(2)(b) ought to be approached in light of the Charter of Human Rights and Responsibilities Act 2006 (Vic), in particular, the impact of the Charter in weighing up what is in the 'public interest.'
Read MoreR v NS, 2010 ONCA 670 (13 October 2010)
The Ontario Court of Appeal recently handed down a significant decision regarding the conflict between the constitutional rights of a witness in a criminal proceeding and the constitutional rights of the accused in that same proceeding. The witness, an alleged victim of sexual assault, sought to uphold her right to religious freedom by wearing her veil, or niqab, while appearing as a witness. The accused contended that his right to a fair trial required that he, his counsel and the trier of fact be able to see his accuser's face when she appeared as a witness. The judgment discussed these competing rights and how courts should go about reconciling them.
Read MoreCobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613 (8 October 2010)
VCAT has recently ruled that a Christian adventure resort has discriminated against a gay youth suicide prevention group by denying them access to its camping facilities because of their sexual orientation.
Read MoreSanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (14 September 2010)
Journalistic material was seized by public authorities in the course of a criminal investigation despite a confidentiality agreement between the journalists and their sources.
Article 10(2) of the European Convention of Human Rights requires that any interference with the right to freedom of expression (art 10(1)) must be ‘prescribed by law’. The European Court of Human Rights held that this requires not only that intrusions on the right to free expression be explicitly authorized by law, but that procedural safeguards – including an assessment by an impartial and independent body – also must exist. Furthermore, this assessment must take place prior to the exploitation of the material by the authorities. The Court held that the quality of the Netherlands law was deficient as no statutory provision existed for judicial review before the police or the prosecution were allowed to seize journalistic materials. The Court unanimously held that this deficiency amounted to a breach of the right to freedom of expression.
Read MoreEvangeline Hernandez v The Philippines, UN Doc CCPR/C/99/D/1559/2007 (20 August 2010)
The Human Rights Committee has held the Philippines breached its obligations under the International Covenant on Civil and Political Rights following the arbitrary killing of a human rights activist by members of the State’s military. The Committee found that the State party failed to take effective measures both to protect the right to life and to ensure the complete and expeditious prosecution of those responsible for the killing, in violation of arts 6(1) and 2(3) of the Covenant.
Read MoreFatima Andersen v Denmark, UN Doc CCPR/C/99/D/1868/2009 (26 July 2010)
The UN Human Rights Committee has held that to be a 'victim' under the International Covenant on Civil and Political Rights requires the identification of specific consequences of the conduct that forms the basis of the complaint, such consequences specifically affecting the alleged victim.
Read MoreMayor of London (On behalf of the Greater London Authority) v Hall & Ors [2010] EWCA Civ 817 (16 July 2010)
The England and Wales Court of Appeal upheld a High Court decision which held that the Mayor of London is entitled to seek an injunction against a group of protestors who established a long-term camping village in a public space. The Court found the injunction did not violate the protestors’ right to freedom of expression or the right to freedom of peaceful assembly and freedom of association protections enshrined in arts 10 and 11 of the European Convention of Human Rights. The Court granted two defendants who protested separately from the group permission to appeal the injunction and associated costs.
Read MoreOntario (Public Safety and Security) v Criminal Lawyers' Association, 2010 SCC 23 (17 June 2010)
The Supreme Court of Canada held that the right to freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms does not guarantee access to all documents held in government hands. Access to documents is a derivative right of the freedom, where the denial of that access would preclude meaningful public discussion on matters of public interest. Access may validly be denied on the basis of countervailing considerations. In this case, those considerations were client-solicitor and law enforcement privilege.
Read MoreToronto Star Newspapers Ltd v Canada, 2010 SCC 21 (10 June 2010)
Legislation providing for mandatory publication bans on bail application hearings was upheld by the Supreme Court of Canada as a reasonable compromise between protecting the accused person’s right to a fair trial and the right to freedom of expression.
Read MoreR v National Post, 2010 SCC 16 (7 May 2010)
In this case, the Canadian Supreme Court found that the guarantee of freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms (Canadian Charter) does not create a constitutionally entrenched immunity to protect journalists against the compelled disclosure of secret sources. The Court examined if there was nevertheless a common law privilege ‘to be applied in light of the important public interest in freedom of expression’ and found that this must be assessed on a case-by-case basis. In this case, the Court considered that the public interest in protection of the secret source did not outweigh the public interest in the production of physical evidence of the alleged crimes.
Read MoreHenry v Canada (Attorney General), 2010 BCSC 610 (4 May 2010)
This case concerned the constitutional validity of voter identification rules, which require electors to provide proof of their identity and residence in order to vote in Canadian federal elections. The Supreme Court of British Columbia found that the relevant provisions of the Canada Elections Act ('the Act') were inconsistent with the right to vote guaranteed under s 3 of the Canadian Charter of Rights and Freedoms ('the Canadian Charter'). However, the Court held that the Act constituted a reasonable limitation on this right, prescribed by law and demonstrably justifiable in a free and democratic society, pursuant to s 1 of the Canadian Charter.
Read MoreEu-min Jung & Ors v Republic of Korea, UN Doc CCPR/C/98/D/1593-1603/2007 (30 April 2010)
The UN Human Rights Committee has held that the Republic of Korea violated art 18, paragraph 1 of the International Covenant on Civil and Political Rights in convicting and sentencing to imprisonment, 11 individuals who refused to be drafted for compulsory military service as a direct expression of their religious beliefs.
Read MoreCatholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Anor [2010] EWHC 520 (Ch) (17 March 2010)
The England and Wales High Court has held that it is for the Charity Commission to determine whether discrimination against same-sex couples by a charitable organisation is justified.
Read MoreXYZ v Victoria Police [2010] VCAT 255 (16 March 2010)
In a significant decision, Bell J has held that the right to freedom of expression under s 15(2) of the Victorian Charter ‘incorporates a positive right to obtain access to government-held documents’. His Honour found, however, that the Freedom of Information Act 1982 (Vic) is substantively compatible with this right and that the Charter does not ‘call for any different manner of applying’ the public interest override where access to documents is refused.
Read MoreWhatcott v Saskatchewan (Human Rights Tribunal), 2010 SKCA 26 (25 February 2010)
The Court of Appeal for Saskatchewan has unanimously held that four flyers, which contained anti-gay sentiments, were not so extreme as to violate that prohibition on hate speech under The Saskatchewan Human Rights Code ('Code'). In arriving at this decision, the court emphasised the importance of protecting the right to freedom of expression, which is protected by the Code, the Canadian Charter of Rights (Charter) and the common law.
Read MorePoverty Alleviation Network & Ors v President of the Republic of South Africa & Ors [2010] ZACC 5 (24 February 2010)
In Poverty Alleviation Network (‘Matatiele 3’) the Constitutional Court of South Africa effectively held that constitutional obligations owed by South African legislatures to facilitate public involvement are obligations of process rather than outcome. Thus, so long as the public has been given a reasonable opportunity to give its views or opinions to the legislature in relation to its legislative or other processes, and the legislature has given them due consideration, there is no requirement that the legislature follows or gives effect to such views in performing its functions.
Read MoreGuardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1 (27 January 2010)
The press challenged orders protecting the identity of the appellants from publication based on the right to freedom of expression. The appellants claimed that would breach their right to respect for private and family life.
Read MoreGrant v Torstar Corp, 2009 SCC 61 (22 December 2009)
This Canadian Supreme Court decision draws on the freedom of expression guarantee in the Canadian Charter to establish a new common law defence of ‘responsible public interest journalism’ to an action for defamation. The scope of this defence is similar to the expanded statutory defence of qualified privilege contained in the Defamation Act 2005 (Vic) s 30.
Read MoreFinancial Times Ltd & Ors v United Kingdom [2009] ECHR 2065 (15 December 2009)
This decision explores the right to freedom of expression as it applies to the protection of journalists’ sources. The Court’s finding of a violation in this case shows that, at least in Europe, compelling circumstances will be required before limitations on this protection will be considered necessary and justified in a democratic society.
Read MoreBKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) (02 December 2009)
In a case concerning the relationship between the right to freedom of expression of media agencies and the right to privacy of nursing home residents, the England and Wales High Court has conducted a balancing exercise and found that the public interest in the case favoured the right to freedom of expression.
Read MoreRogers v Chief Commissioner of Police [2009] VCAT 2526 (26 November 2009)
In Rogers v Chief Commissioner of Police, VCAT held that CCTV footage and audio tape used for the investigation of an incident that occurred in the Banksia Unit of HM Barwon Prison were exempt from disclosure under the Freedom of Information Act 1982 (Vic). VCAT ordered that the documents should not be released to the Applicant, Darren Rogers
Read MoreMcInnes v Vicroads (General) [2009] VCAT 2342 (4 November 2009)
McInnes made an application under the Freedom of Information Act 1982 (Vic) (‘FOI Act’) to VicRoads for a copy of an anonymous letter that VicRoads had received warning that his health might impact on his driving. VicRoads asked McInnes to provide them with a medical report, upon the presentation of which his licence was confirmed by VicRoads. However, the process caused McInnes to feel stressed and victimised. McInnes believed that a neighbour in his hostel had sent the letter.
Read MoreNovartis Pharmaceuticals UK Ltd & Ors v Stop Huntingdon Animal Cruelty & Ors [2009] EWHC 2716 (QB) (30 October 2009)
The High Court of England and Wales refused to grant amendments to an interim injunction that would have prevented animal rights activists from wearing blood spattered clothing, covering their faces with masks, displaying banners and using fireworks at a protest against a pharmaceutical company. The Court explored where to draw the line between free expression and unlawful harassment, observing that this is a matter of fact and degree.
Read MoreVictorian Electoral Commission (Anti-Discrimination Exemption) [2009] VCAT 2191 (30 September 2009)
VCAT has granted the Victorian Electoral Commission ('VEC') an exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act') to enable the VEC to take into account certain political activities of a person when considering whether to offer the person employment, contract work or an appointment on the audit committee of the VEC. In arriving at her decision, Vice President Harbison referred to the principles enunciated by President Bell in Lifestyle Communities Ltd (No 3) [2009] VCAT 1869.
Read MoreMcIntosh v Victoria Police [2009] VCAT 1868 (16 September 2009)
In this case, Bell J held that the Freedom of Information Act 1982 (Vic) should be interpreted consistently with the s 15 of the Charter, which recognises that the right to seek, receive and impart information is an aspect of the human right of freedom of expression.
Read MoreBrümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21 (13 August 2009)
On 13 August 2009, the Constitutional Court of South Africa handed down a decision regarding the rights of access to court and access to information. The Court determined that, in certain circumstances, statutory time limitations for the filing of appeals may be unconstitutional.
Read MoreSmeaton v Victorian WorkCover Authority [2009] VCAT 1195 (5 August 2009)
The Applicant sought review of a decision by the Victorian WorkCover Authority to transfer documents that were the subject of a Freedom of Information request by the Applicant to the Ombudsman. The effect of the transfer was to place the documents beyond the Applicant’s reach as, once a document is transferred to the Ombudsman, it is immune from release: s 29A of the Ombudsman Act 1973. The application for review was dismissed on the basis that VCAT does not have jurisdiction to review the relevant decision: s 50(2) of the FOI Act.
Read MoreAlberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (24 July 2009)
In a 4:3 decision handed down on 24 July 2009, the Supreme Court of Canada allowed an appeal regarding the constitutionality of a regulation requiring photographs be taken for the grant of a driver’s licence. The regulation was held to be constitutional because it is a justifiable limit on the right to religious freedom; and does not constitute religious discrimination against the respondents.
Read MoreSecretary of State for the Home Department v GG [2009] EWCA Civ 786 (23 July 2009)
The Court of Appeal of England and Wales has considered the Home Secretary’s power to restrict a person’s liberty with a control order made under the UK Prevention of Terrorism Act 2005. The Court held that broad powers under the relevant legislation had to be read consistently with the common law principle that fundamental rights must not be abrogated without express parliamentary authority.
Read MoreGreater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 (10 July 2009)
The Canadian Supreme considered advertisements on public buses and held that a policy prohibiting political advertisements amounted to a breach of the right to freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms.
Read MoreVerein Gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) [2009] ECHR 32772/02 (30 June 2009)
In VgT v Switzerland (No 2) the Grand Chamber of the European Court of Human Rights held that not only should the State refrain from interfering with an individual’s rights under the European Convention on Human Rights, but in some circumstances there is a positive obligation on the State to ensure that an individual is afforded guarantees under the Convention. In this case, the State was required to ensure the full and proper execution of a judgment of the European Court to remedy a breach of the Convention and the failure to adequately do so constituted a fresh breach of the Convention.
Read MoreAC v Manitoba (Director of Child and Family Services), 2009 SCC 30 (26 June 2009)
On 26 June 2009, the Canadian Supreme Court handed down a decision which discussed in detail the right of adolescents to make their own medical decisions. The Court held that the wishes of the child must be considered when determining what action was in the child’s best interests.
Read MoreAttorney-General's Reference No 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order [2009] UKHL 34 (17 June 2009)
The House of Lords has held that, in the interests of the right to freedom of expression, it was a reasonable intrusion on the right to privacy to publish the name of a defendant acquitted of rape.
Read MoreWood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009)
The England and Wales Court of Appeal has held that the police taking photographs of an individual in a public space (and retaining those photographs) breached that individual's right to privacy under art 8(1) of the European Convention on Human Rights, which states that every person has the right to respect for their private and family life, their home and his correspondence.
Read MoreDixon v Powell River (City), 2009 BCSC 406 (CanLII) (26 March 2009)
This case held that the Canadian common law should, wherever possible, be interpreted and developed to accord with the rights in the Canadian Charter of Rights and Freedoms. Garson J declined to follow earlier defamation case law on the basis that it was inconsistent with the right to freedom of expression. Her Honour held that a government body cannot sue individuals for defamation when those individuals speak out about the conduct of its governmental functions.
Read MoreXFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009)
The Victorian Civil and Administrative Tribunal has confirmed that society's interests in an individual's rehabilitation can override the principle of 'Open Justice' and the right to freedom of expression. Herald and Weekly Times Pty Ltd ('HWT') applied to lift an order suppressing the identity of a man who had previously been acquitted of murdering his wife by reason of insanity and had recently been issued a taxi driver's licence. VCAT declined to revoke the order because publication of the man's identity could adversely affect his rehabilitation.
Read MoreTabernacle v Secretary of State for Defence [2009] EWCA Civ 23 (05 February 2009)
The England and Wales Court of Appeal has held that bylaws which prohibited camping in the vicinity of the Atomic Weapons Establishment at Aldermaston ('the AWE') were an unlawful interference with the right of the appellant, a member of the Aldermaston Women's Peace Camp ('the AWPC'), to freedom of expression and freedom of peaceful association under the European Convention on Human Rights.
Read MoreAustin & Anor v Commissioner of Police of the Metropolis [2009] UKHL 5 (28 January 2009)
In this case, the House of Lords dismissed an appeal by a woman claiming that her right to liberty was breached as a result of police crowd control measures in central London.
Read MoreErdoğan v Turkey [2009] ECHR 39656/03 (13 January 2009)
The European Court of Human Rights recently found that the Government of Turkey, having ordered lawyer Ayhan Erdoğan to pay compensation for remarks that he made against a public figure during court proceedings, had breached Mr Erdoğan's right to freedom of speech in violation of art 10 of the European Convention on Human Rights.
Article 10 of the Convention guarantees the right to freedom of expression, including the freedom to 'impart information and ideas without interference by public authority and regardless of frontiers' (art 10(1)), subject to such restrictions and penalties as are 'prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others' (art 10(2)).
Read MoreTV Vest AS & Rogaland Pensjonisparti v Norway [2008] ECHR 21132/05 (11 December 2008)
In this case, the European Court of Human Rights considered the right to freedom of expression in the context of political advertising in the media. This judgment again shows that there must be a reasonable relationship of proportionality between the legitimate aim pursued by a statutory prohibition and the means deployed to achieve that aim.
Read MoreRJE v Secretary to the Department of Justice [2008] VSCA 131 (18 December 2008)
In this case, Nettle J of the Victorian Court of Appeal considered the scope and operation of s 32(1) of the Victorian Charter of Human Rights, which provides that ‘so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.
Read MoreSalduz v Turkey [2008] ECHR 36391/02 [Grand Chamber] (27 November 2008)
The Grand Chamber of the European Court of Human Rights has overruled a lower chamber decision, finding that the right to a fair trial (prescribed in art 6 of European Convention on Human Rights) includes access to legal assistance during the investigation stage of a suspect by the police.
Read MoreSeachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 2629 (25 November 2008)
In this case, VCAT found that the Charter rights to a fair hearing (s 24) and the rights in criminal proceedings (s 25) do not extend to persons who are being investigated by police for possible commission of a criminal offence.
Read MoreX v General Television Corporation Pty Ltd & Ors [2008] VSC 344 (8 September 2008)
In this case Vickery J decided that it was appropriate in a free and democratic society to temporarily curtail freedom of media expression to guarantee X the right to a fair trial.
Read MoreVajnai v Hungary [2008] ECHR 33629/06 (8 July 2008)
The European Court of Human Rights held that there was a violation of art 10 of the European Convention on Human Rights when criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public.
Read MoreWIC Radio Ltd v Simpson, 2008 SCC 40 (27 June 2008)
The Supreme Court of Canada has again emphasised the importance of the common law evolving in a manner that is consistent with Charter values.This was a private law defamation case involving a controversial radio talk show host, ‘M’, and a social activist opposed to any positive portrayal of a gay lifestyle, ‘S’. M publicly likened S to Hitler, the Ku Klux Klan and skinheads and S claimed defamation because she had never advocated violence against homosexuals. The trial judge dismissed the action on the basis that, while statements complained of in the editorial were defamatory, the defence of fair comment applied and provided a complete defence.
Read MoreAnimal Defenders International, R (On The Application of) v Secretary of State For Culture, Media and Sport [2008] UKHL 15 (12 March 2008)
In this decision, the UK Court of Appeal held that a ban on political advertising can be compatible with art 10 of the European Convention on Human Rights.
Read MoreTrinity Mirror & Ors, R (on the application of) v Croydon Crown Court [2008] EWCA Crim 50 (1 February 2008)
The UK Court of Appeal has held that the right to freedom of expression and the media’s right to disclose the identities of convicted persons and report in the public interest may outweigh the interests of children of convicted persons and their right to privacy.
Read MoreFerguson v Walkley & Anor [2008] VSC 7 (31 January 2008)
Under ss 17(1)(c) and 17(1)(d) of the Summary Offences Act 1966 (Vic), it is an offence to use insulting words and behave in an insulting manner in a public place. In this decision, Harper J held that these sections are subject to the decision in Coleman v Power (2004) 220 CLR 1 (that is, ‘whether the impugned behaviour is so deeply or seriously insulting, and therefore so far contrary to contemporary standards of public good order, as to warrant the interference of the criminal law’). The Court held that, the effect of such an interpretation renders the provisions of the Summary Offences Act consistent with the right to freedom of expression enshrined in s 15 of the Victorian Charter.
Read MoreThe European Court of Human Rights recently held that the imprisonment of a journalist for refusing to disclose the identity of a confidential source constituted a violation of the right to freedom of expression under art 10 of the European Convention.
Read MoreIn a judgment handed down on 15 November 2007, the European Court of Human Rights held that a state’s failure to adequately protect a person from defamation amounted to a breach of art 8 of the European Convention on Human Rights, which enshrines the right to respect for private and family life. The judgment also considered the balance between the right to private life and reputation, on the one hand, and the right to freedom of expression on the other.
Read MoreThe European Court of Human Rights has recently considered the content and application of the rights to freedom of peaceful assembly and association, holding that ‘the right to freedom of assembly is a fundamental right in a democratic society’ and that any exceptions to the right ‘must be narrowly interpreted and the necessity for any restrictions must be convincingly established’.
Read MoreTo what extent is it acceptable to limit the right to freedom of expression to protect a person's reputation? A recent decision of the Grand Chamber of the European Court of Human Rights, Lindon v France, considers the question.
Read MoreFlux and Samson v Moldova [2007] ECHR 28700/03 (23 October 2007)
The European Court of Human Rights has held that judicial decisions in defamation proceedings brought against a Moldovan newspaper interfered with its right to freedom of expression, and more specifically its right to disseminate public opinion on a matter of public interest. The decision addressed the permissible limitations on the right to freedom of expression in the context of a potentially defamatory publication.
Read MoreOn 26 September 2007, the High Court published reasons for its orders of 30 August 2007 in the matter of Roach v Australian Electoral Commissioner and the Commonwealth which invalidated amendments to the Electoral Act made in 2006. The amendments operated such that all prisoners serving a full-time sentence of detention were not entitled to vote at federal elections. By a 4-2 majority, the Court held that the amendments were unconstitutional.
Read MoreThe European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights. That right is protected by s 16(1) of the Victorian Charter. In both cases, domestic law required that the authorities be informed in advance of any planned public assembly.
Read MoreThe European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights. That right is protected by s 16(1) of the Victorian Charter. In both cases, domestic law required that the authorities be informed in advance of any planned public assembly.
Read MoreThe scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada. While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial matters and, moreover, that the public have a prima facie right to ‘hear’ the expression (as opposed to a corporation having a right to ‘express’ the information). It is clear from both cases, however, that freedom of expression about commercial matters will be afforded a lower threshold of protection than expression about socio-political matters (see also the Statement of Compatibility issued under the Victorian Charter of Human Rights and Responsibilities in relation to the Major Events (Aerial Advertising) Bill 2007).
Read MoreBakan v Turkey [2007] ECHR Application No 50939/99 (12 June 2007) Ciorap v Moldova [2007] ECHR Application No 12066/02 (19 June 2007)
Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts.
Read MoreBoehringer Ingelheim Limited & Ors v Vetplus Limited [2007] EWCA Civ 583 (20 June 2007) Canada (Attorney General) v JTI-Macdonald Corp 2007 SCC 30 (28 June 2007)
The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada. While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial matters and, moreover, that the public have a prima facie right to ‘hear’ the expression (as opposed to a corporation having a right to ‘express’ the information).
Read MoreBrooker v The Police [2007] NZSC 30 (4 May 2007)
The Supreme Court of New Zealand has recently considered the extent to which privacy limits freedom of expression in the context of the Bill of Rights Act 1990 (NZ).
Read MoreBaczkowski & Ors v Poland [2007] ECHR 1543/06 (3 May 2007)
The European Court of Human Rights has found that Poland violated its obligations to protect the right to freedom of assembly as a result of a failure to facilitate and accommodate a protest regarding discrimination against minority groups.
Read MoreVilho Eskelinen & Ors v Finland [2007] ECHR [GC] 63235/00 (19 April 2007)
In a judgment handed down on 19 April 2007, the Grand Chamber of European Court of Human Rights considered the scope of the right to a fair hearing in the context of civil proceedings, with particular reference to the acceptable length of proceedings and the necessity of an oral hearing.
Read MoreR (on the application of H) v Mental Health Review Tribunal [2007] All ER (D) 29 (Apr)
The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant's position and subsequently ordered the claimant's discharge under s 73 of the Act on the condition that, amongst other things, the claimant 'shall comply' with medication prescribed by a specified doctor. The claimant applied for revocation of this and other conditions and sought an order for absolute discharge on the basis that it interfered with his right under art 8 of the European Convention on Human Rights which provides that '[e]veryone has the right to respect for his private and family life, his home and his correspondence'.
Read MoreColeman v Australia, HRC, Communication No 1157/2003, UN Doc CCPR/C/87/D/1157/2003 (10 August 2006)
In a decision with important ramifications for the human rights obligations of federal, state and local governments and officials, the UN Human Rights Committee (‘Committee’) has concluded that the application of a Queensland law and a Townsville bylaw impermissibly restricted the complainant’s right to freedom of expression, placing Australian breach of its obligations under the ICCPR.
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