In the conviction and he was then

In the case of R v Blackman 2017 E.M.L.R. 17, in 2011, a
former Sergeant in the Royal Marines had killed a wounded insurgent in
Afghanistan. His conviction of murder was rejected as invalid after he had
successfully appealed against the conviction and he was then sentenced to a
verdict of manslaughter on the basis of diminished responsibility instead.


In 2017, various media organisations applied to the courts
to make six video clips, taken by another marine present at the time of the
insurgent’s death, available for use to use publicly. These would be the
transcripts, soundtrack of the videos and still photographs. The outcome of the
case was that the Judge Advocate General opposed the application of the clips, and
refused the release of the video recordings but allowed for the release of
soundtrack and certain photographs to be released. However, various media
outlets made further applications for disclosure and so the Ministry of Defence
agreed to allow the media to use and release only three of the recordings, and
so three of six clips alongside some stills of the videos and transcripts were
released by various media outlets to be used and viewed publicly.

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The media outlets applied for further disclosure of the
remaining 3 tapes and argued the European Convention on Human Rights1
Article 10, the qualified right of Freedom of Expression. The media argued that
everyone has the right of Freedom of expression, with freedom to hold opinions
and for the sake of fair reporting, and so all clips should be used within the
public domain. It was held that the application made by the media outlets to
use all materials was refused and the remaining three recordings were ‘the
subject of the instant application’. The reasoning that was used by the
Ministry of Defence and the courts was that if the other three videos were
released it could pose as a possible threat to life as the undisclosed three
clips could be used by various terrorist organisations as propaganda in a bid to
radicalise others, and promote terrorist activity, and releasing the clips could
also pose as threatening to the lives of individuals serving in the armed
forces and the general British public and British individuals living abroad. And
so, the further applications for disclosure made by the various media outlets
were not granted. The courts argued the European Convention on Human Rights, the
qualified right of Article 2 the Right to Life, that the release of the
remaining tapes would be a threat to human life, as Article 2 states that “everyone’s
right to life shall be protected by law”.2 The
courts made clear that they “did not have to balance the principle of open
justice and the rights of the media”3.
The courts and MoD4
found it clear without any doubts and that there was no need to balance the 2
articles as Article 2 was found to be more important in regards to the public
and to their safety.


I personally found that the decision taken by the courts was
the right decision. The British public and armed forces should be protected by
any means possible, and if not disclosing the remaining 3 tapes meant that the
public would be safer and we wouldn’t be playing into the hands of terrorist
organisations then I agree that the remaining three tapes should not be
released and it was the right decision taken by the courts and Ministry of
Defence. The safety of the public should always be priority.






Human Rights are the basic rights and freedoms that belong
to all individuals, from birth until death. They apply regardless of where you
are from, what you believe or how you choose to live your life. These basic
rights are based on dignity, fairness, equality, respect and independence.
Human Rights are not just abstract concepts – they are defined and protected by
law. These rights can never be taken away; however, they can sometimes be
restricted. An example of a Human right that can be restricted is the qualified
right 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 them
without any interference and it is fundamental to our democracy. However,
although all individuals have freedom of expression, everyone also has the duty
to use their freedom of expression responsibly and to respect other individuals.
There are certain legal limits on article 10, which will be analysed in this


Article 10 may be limited in certain circumstances. One of
the legal limits on Article 10 is the prevention of disorder and crime. One of
the key elements of Article 10 is respecting other individuals while expressing
your views aloud. In certain circumstances, Freedom of expression can be
restricted by the law such as in times when the right to express views is used
against other people in acts of expressing hatred and racism. Controversial or
offensive views are typically not allowed. The right can be limited by the law
as it can be criminal, i.e. when racist or homophobic language is used. Hate
speech is largely a reason as to why article 10 is a qualified right. Hate
speech can typically be against a certain group of people or individual in
regards to their sexual orientation, religious beliefs, ethnic origins or their
immigration status. Every individual has the right to be protected against hate
speech, discrimination and violence and so Article 10 of Freedom of expression
is limited to help protect individuals from this. Article 10 states that it
‘may be subject to conditions.. in the interest of public safety, for the
prevention of disorder or crime’5. A
case in which Article 10 Freedom of expression was argued by an individual was
the case of Garaudy v France6.
This case involved the author of a book called ‘The Founding Myths of Modern
Israel’. The author, Roger Garaudy was convicted of contesting and denying the
existence of the crimes against the Jewish people during the holocaust. He
disputed the crimes against humanity and was convicted of inciting racial
hatred. He argued his given right of Article 10 and that his right to Freedom
of expression had been violated and that he should be able to say and express
whatever 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”7
and they prohibited his use of Article 10 and held that he was unentitled to
rely on Article 10 Freedom of expression when arguing his defence. The courts
found that they could interfere with his right to Freedom of expression due to
the severity of his hate speech. This is an example of how Freedom of
expression can be limited when it is used in a derogatory manner enticing
disorder and crime.


Another legal limit on Article 10 involves censorship within
the media. Limiting free expression typically involves restricting certain
publications and preventing the disclosure of certain information from being
released into the public domain. Censorship is the protection from materials
considered harmful or inappropriate, which subsequently limits free speech.
Although Freedom of expression is detrimental to our society and to our
democracy, media outlets often face censorship. Many people oppose censorship
as it filters content to what we are allowed to see and hear and what we are
not. Public censorship deters certain information from being released to the
public and can limit the distribution of media such as film and TV and can stop
certain newspaper articles from being released for the public to view.  Article 10 of the ECHR8
states that it ‘may be subject to restrictions in the interest of preventing
the disclosure of information received in confidence’9.
Many argue that it is vital to balance both Freedom of expression and
censorship. And within our society, it is important to uphold moral values and
filter content from that which is useful to our ever changing and growing
society, and to limit content which is considered as harmful to us, and would
not benefit us. However, when the media is censored, Article 10 Freedom of
expression is limited greatly and many argue and believe that we should be able
to decide ourselves whether something is harmful to us, what we see and hear
should not be limited to us and that we should have the free will to form our
own 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 group
campaigned against abortion and wanted to, as part of their political
broadcast, show images of aborted foetuses and other disturbing images. The BBC
prevented this as they did not want it shown before the watershed hour where it
may be offensive to certain individuals and harmful if viewed by children. The
ProLife Alliance argued that it was an unjustified interference with their
right of Article 10, however the BBC were successful in their case. This is an
example of how censorship limits Freedom of expression, especially when it is
considered offensive and harmful. Many argue that we should be able to decide
ourselves whether something is inappropriate to us, and everything should be
disclosed to us and should be fully transparent and we, the public, should form
our own opinions and not live life through a constant filter.


After analysing the two legal limits on Article 10 – prevention
of disorder and crime and censorship of the media, I think that Freedom of
expression should be an absolute right as it is a fundamental human right and
should not be limited. However, I do believe that it should be used in a
peaceful and appropriate manner. Without freedom of expression we cannot fully
express ourselves, it makes for ignorance and stops us from making informed
decisions. When Freedom of expression moves to becoming discriminatory and
hateful, that is the point in which the law should step in and moderate and
intervene. However, preventing ideas, creating misinformation and not allowing
us to form our own opinions does not allow for change and so I believe that
Article 10 Freedom of expression should not be a qualified right, but an
absolute one.




ECHR Art. 2

Criminal Law & Justice Weekly on R v Blackman 2017

Ministry of Defence

ECHR Article 10 (2)

Garaudy v France (no. 65831/01)

Garaudy v France ECHR Factsheet July 2017

European Convention on Human Rights

ECHR Article 10 (2)

ProLife Alliance v British Broadcasting Corporation 2003 2 W.L.R. 1403           


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