In the case of R v Blackman 2017 E.M.L.
R. 17, in 2011, aformer Sergeant in the Royal Marines had killed a wounded insurgent inAfghanistan. His conviction of murder was rejected as invalid after he hadsuccessfully appealed against the conviction and he was then sentenced to averdict of manslaughter on the basis of diminished responsibility instead. In 2017, various media organisations applied to the courtsto make six video clips, taken by another marine present at the time of theinsurgent’s death, available for use to use publicly. These would be thetranscripts, soundtrack of the videos and still photographs. The outcome of thecase was that the Judge Advocate General opposed the application of the clips, andrefused the release of the video recordings but allowed for the release ofsoundtrack and certain photographs to be released.
However, various mediaoutlets made further applications for disclosure and so the Ministry of Defenceagreed to allow the media to use and release only three of the recordings, andso three of six clips alongside some stills of the videos and transcripts werereleased by various media outlets to be used and viewed publicly. The media outlets applied for further disclosure of theremaining 3 tapes and argued the European Convention on Human Rights1Article 10, the qualified right of Freedom of Expression. The media argued thateveryone has the right of Freedom of expression, with freedom to hold opinionsand for the sake of fair reporting, and so all clips should be used within thepublic domain. It was held that the application made by the media outlets touse all materials was refused and the remaining three recordings were ‘thesubject of the instant application’. The reasoning that was used by theMinistry of Defence and the courts was that if the other three videos werereleased it could pose as a possible threat to life as the undisclosed threeclips could be used by various terrorist organisations as propaganda in a bid toradicalise others, and promote terrorist activity, and releasing the clips couldalso pose as threatening to the lives of individuals serving in the armedforces and the general British public and British individuals living abroad.
Andso, the further applications for disclosure made by the various media outletswere not granted. The courts argued the European Convention on Human Rights, thequalified right of Article 2 the Right to Life, that the release of theremaining tapes would be a threat to human life, as Article 2 states that “everyone’sright to life shall be protected by law”.2 Thecourts made clear that they “did not have to balance the principle of openjustice and the rights of the media”3.The courts and MoD4found it clear without any doubts and that there was no need to balance the 2articles as Article 2 was found to be more important in regards to the publicand to their safety.
I personally found that the decision taken by the courts wasthe right decision. The British public and armed forces should be protected byany means possible, and if not disclosing the remaining 3 tapes meant that thepublic would be safer and we wouldn’t be playing into the hands of terroristorganisations then I agree that the remaining three tapes should not bereleased and it was the right decision taken by the courts and Ministry ofDefence. The safety of the public should always be priority. Q2.) Human Rights are the basic rights and freedoms that belongto all individuals, from birth until death.
They apply regardless of where youare from, what you believe or how you choose to live your life. These basicrights are based on dignity, fairness, equality, respect and independence.Human Rights are not just abstract concepts – they are defined and protected bylaw.
These rights can never be taken away; however, they can sometimes berestricted. An example of a Human right that can be restricted is the qualifiedright of Article 10 of the European Convention on Human Rights – Freedom of expression.Article 10 protects your right to express your own opinions and to express themwithout any interference and it is fundamental to our democracy. However,although all individuals have freedom of expression, everyone also has the dutyto use their freedom of expression responsibly and to respect other individuals.
There are certain legal limits on article 10, which will be analysed in thisessay. Article 10 may be limited in certain circumstances. One ofthe legal limits on Article 10 is the prevention of disorder and crime.
One ofthe key elements of Article 10 is respecting other individuals while expressingyour views aloud. In certain circumstances, Freedom of expression can berestricted by the law such as in times when the right to express views is usedagainst other people in acts of expressing hatred and racism. Controversial oroffensive views are typically not allowed. The right can be limited by the lawas it can be criminal, i.e.
when racist or homophobic language is used. Hatespeech is largely a reason as to why article 10 is a qualified right. Hatespeech can typically be against a certain group of people or individual inregards to their sexual orientation, religious beliefs, ethnic origins or theirimmigration status. Every individual has the right to be protected against hatespeech, discrimination and violence and so Article 10 of Freedom of expressionis limited to help protect individuals from this. Article 10 states that it’may be subject to conditions.
. in the interest of public safety, for theprevention of disorder or crime’5. Acase in which Article 10 Freedom of expression was argued by an individual wasthe case of Garaudy v France6.This case involved the author of a book called ‘The Founding Myths of ModernIsrael’. The author, Roger Garaudy was convicted of contesting and denying theexistence of the crimes against the Jewish people during the holocaust.
Hedisputed the crimes against humanity and was convicted of inciting racialhatred. He argued his given right of Article 10 and that his right to Freedomof expression had been violated and that he should be able to say and expresswhatever he pleases. However, the court had declared that his remarks were a”serious form of racial defamation of Jews and incitement to hatred of them”7and they prohibited his use of Article 10 and held that he was unentitled torely on Article 10 Freedom of expression when arguing his defence.
The courtsfound that they could interfere with his right to Freedom of expression due tothe severity of his hate speech. This is an example of how Freedom ofexpression can be limited when it is used in a derogatory manner enticingdisorder and crime. Another legal limit on Article 10 involves censorship withinthe media. Limiting free expression typically involves restricting certainpublications and preventing the disclosure of certain information from beingreleased into the public domain.
Censorship is the protection from materialsconsidered harmful or inappropriate, which subsequently limits free speech.Although Freedom of expression is detrimental to our society and to ourdemocracy, media outlets often face censorship. Many people oppose censorshipas it filters content to what we are allowed to see and hear and what we arenot. Public censorship deters certain information from being released to thepublic and can limit the distribution of media such as film and TV and can stopcertain newspaper articles from being released for the public to view. Article 10 of the ECHR8states that it ‘may be subject to restrictions in the interest of preventingthe disclosure of information received in confidence’9.
Many argue that it is vital to balance both Freedom of expression andcensorship. And within our society, it is important to uphold moral values andfilter content from that which is useful to our ever changing and growingsociety, and to limit content which is considered as harmful to us, and wouldnot benefit us. However, when the media is censored, Article 10 Freedom ofexpression is limited greatly and many argue and believe that we should be ableto decide ourselves whether something is harmful to us, what we see and hearshould not be limited to us and that we should have the free will to form ourown opinions. An example of censorship in the media is the case of ProLife Alliance v BBC (2003)10.This case arose during the 2001 elections, the ProLife Alliance groupcampaigned against abortion and wanted to, as part of their politicalbroadcast, show images of aborted foetuses and other disturbing images. The BBCprevented this as they did not want it shown before the watershed hour where itmay be offensive to certain individuals and harmful if viewed by children.
TheProLife Alliance argued that it was an unjustified interference with theirright of Article 10, however the BBC were successful in their case. This is anexample of how censorship limits Freedom of expression, especially when it isconsidered offensive and harmful. Many argue that we should be able to decideourselves whether something is inappropriate to us, and everything should bedisclosed to us and should be fully transparent and we, the public, should formour own opinions and not live life through a constant filter. After analysing the two legal limits on Article 10 – preventionof disorder and crime and censorship of the media, I think that Freedom ofexpression should be an absolute right as it is a fundamental human right andshould not be limited. However, I do believe that it should be used in apeaceful and appropriate manner.
Without freedom of expression we cannot fullyexpress ourselves, it makes for ignorance and stops us from making informeddecisions. When Freedom of expression moves to becoming discriminatory andhateful, that is the point in which the law should step in and moderate andintervene. However, preventing ideas, creating misinformation and not allowingus to form our own opinions does not allow for change and so I believe thatArticle 10 Freedom of expression should not be a qualified right, but anabsolute one. 1ECHR2ECHR Art. 2 3Criminal Law & Justice Weekly on R v Blackman 20174Ministry of Defence 5ECHR Article 10 (2)6Garaudy v France (no. 65831/01) 7Garaudy v France ECHR Factsheet July 2017 8European Convention on Human Rights9ECHR Article 10 (2)10ProLife Alliance v British Broadcasting Corporation 2003 2 W.