The well-established jurisprudence of the ECHR has long suggested for the protection of expressions that are not only favorably received, but even those that ‘offend, shock or disturb’. The present case analysis will set forth the ECHR’s interpretation of its Article 10, regarding the freedom of expression through its famous Handyside case.
Case Summary
Mr. Richard Handyside, the owner of the publishing house “Stage 1” which had published numerous books on different topics since 1968, published a book called The Little Red Schoolbook (hereinafter called “the Schoolbook”) with an intention of reaching schoolchildren at the age of twelve and upwards to educate them about sex (including subsections on issues such as masturbation, pornography, homosexuality, abortion, etc.) as he said in the hearings of the appeal. The book’s content raised various complaints in the Britain Press that ended with an inquiry of the Director of Public Prosecutions on 31 March and 1 April 1971 under the Obscene Publications Acts which provided the Prosecutors with a warrant of seizure of the copies of the Schoolbook. After the hearings of the Magistrates’ Court, the decision of conviction of Mr. Handyside with confiscation and annihilation of the books was given on behalf of the Prosecutor on 1 July 1971. On the grounds of a flawed decision of the Magistrates, Mr. Handyside appealed to the Inner London Quarter Sessions and as a result, the decision at first instance was upheld.
During the hearings of the Inner London Quarter Sessions, two principal issues were addressed: whether the Schoolbook was obscene without a reasonable doubt under the Obscene Publications Acts, and if so, whether the applicant had established a valid defense under section 4 of the 1959/1964 Acts. Concerning the first issue, the Court concluded that considering the book, either as a whole or in part, certain specific contents tended to deprave and corrupt a significant proportion of children under sixteen who were likely to read it, despite positive aspects of the book. As to the second issue, the Court found Mr Handyside’s justification for publishing the book in the public interest unsatisfactory, given the detrimental impact of the subversive paragraphs.
Subsequently, Mr. Handyside applied to the ECHR, citing the infringement of the relevant articles of the Convention and Protocol. The Court accepted his application by taking into the account mainly Articles 10 of the Convention and Article 1 of the Protocol 1 which concern freedom of expression and peaceful enjoyment of rights.
Claims of the sides and Decision of the Court
Upon the application of Mr. Handyside, the Court first outlined its intended course of action. After assessing the assertions made by the public authority regarding the regulation of freedom of expression under Article 10, the Court emphasized that such an interference would be legitimate only if it was prescribed by the law, and if so, was necessary in a democratic society, namely in this specific case “protection of morals in a democratic society”. Also, the Court stated that it must investigate whether the protection of morals necessitates such a measure of not. While investigating that, the Court pointed out that it was not tasked with supplanting local jurisdiction. Rather, in accordance with subsidiary principle, it was charged with overseeing the conformity of actions with the Convention to ensure that the English Courts had acted reasonably, in good faith, and within the limits of the margin of appreciation left to the Contracting States by Article 10. (para. 47)
Following the described method, the Court evaluated the complaints of the applicant in the light of the case as a whole starting from the raison d’être of the case, the Schoolbook itself. After acknowledging the discretionary authority of the English courts to determine that the Schoolbook’s content could potentially deprave and corrupt children, the Court turned to the applicant’s claims. According to the applicant, “protection of the morals” was only a pretext to prevent a small-scale publisher from delivering his opinions, whose political leanings diverged from a fragment of the public opinion. The primary targets were the book’s anti-authoritarian emphases. The British Government counterclaimed that the idea of the morals in question extended beyond a mere fragment of the public, encompassing the broader public, as evidenced by the general discourse in the English press. As to the anti-authoritarian elements, the Court specified that in the local hearings, such an inquiry was not on the agenda, and the British government did not inquire about the revised edition of the Schoolbook which still retained anti-authoritarian aspects. (para. 52)
Beyond these, from the point of the view of Mr. Handyside, the Schoolbook was disproportionately evaluated, as various other publications on hardcore pornography, devoid of intellectual or artistic merit benefited from extensive freedom in England. However, the Government countered this argument again by emphasizing the intended audience of the book and the limited manpower resources of the squad specializing in this field. (para. 56) Indeed, as there was no European consensus on the protection of public morals regarding children, there was a margin of appreciation left on the states’ part.
After having remarked on the points above, the Court concluded that breach of the Article 10 was not evident.
Subsequently, the Court questioned whether the Article 1 of Protocol 1 had been breached. Accordingly, two distinct measures were under scrutiny: the seizure of hundreds of copies of the Schoolbook and their forfeiture and subsequent destruction as a result of the local judgment. Both measures interfered with Mr. Handyside’s right to “peaceful enjoyment of his possessions” under Article 1 of Protocol 1. Regarding the seizure, the Court noted that this complaint was provisional and thus it did not constitute a “deprivation of possession” which actually means loss of ownership. However, the seizure could be viewed as a restriction on the “use of property” and thus should be examinated under the second paragraph. The Court confined its analysis to determining whether the restriction was lawful and served a legitimate purpose, as the second paragraph acknowledges states’ margin of appreciation in general interest. It concluded that these conditions were met ,and thus the interference was legitimate. Concerning the forfeiture and subsequent destruction of the books, the Court noted again that the enjoyment of possessions may be regulated and restricted lawfully in accordance with the general interest, as stipulated in the second paragraph of Article 1. Based on these findings, the Court concluded that there was no breach of the Article 1 of Protocol 1.
Conclusion
Having stated that these rights were essential for a democracy, the Court emphasized that they must be considered within their limitations and liabilities. It can be observed from the decision that the Court interprets an interference in the freedom of expression broadly by taking into account prohibition and confiscation of a publication. Nevertheless, the Court did not abstain from evaluating the interferences in question in light of its margin of appreciation doctrine. The Court concluded that states’ margin of appreciation should not be overlooked unless such the appreciation turns against the principles of a democratic society.
