Human Rights Case Summaries

Joseph Matal, Interim Director, United States Patent and Trademark Office, Petitioner v Simon Shia Tam 582 U.S. ____ (2017)

The United States Supreme Court has struck down a section of the US Federal trademark law known as ‘the Lanham Act’ on the basis that it violates the First Amendment’s free speech clause.

Corneloup v Launceston City Council [2016] FCA 974 (19 August 2016)

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.

Utah v Strieff  357 P. 3d 532 (2016)

The 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.

Vasiliauskas v Lithuania (European Court of Human Rights, Grand Chamber, Application No 35343/05, 20 October 2015) 

The 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.

Mammadov v Azerbaijan (European Court of Human Rights, Grand Chamber, Application No 60259/11, 15 October 2015)

The 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.

Gahramanli and Others v Azerbaijan (European Court of Human Rights, Chamber, Application No 36503/11, 8 October 2015)

The 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. 

McCloy v New South Wales [2015] HCA 34

On 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.

Morice 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. 

Kuczborski v Queensland [2014] HCA 46  (14 November 2014)

The 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.

Mladina D.D. Ljubljana v Slovenia (European Court of Human Rights, Chamber, Application No 20981/10, 17 April 2014)

A 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.

Lemire v Canada (Human Rights Commission) 2014 FCA 18 (31 January 2014)

The 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.

Banerji 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.

 Shindler 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.

Animal 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.

Eon 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.

Attorney-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.

Bikramjit 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.

Case 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.

Pointon 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.

Lund 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.

Print 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.

Magee 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.

Thompson 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.