Freedom of Speech I.
Freedom of speech as principle
a. case Lebach (Germany):
"According to the *Bundesverfassungsgericht, the personality right of *Art. 2 § 1 Basic Law guarantees every individual an ”autonomous space for the private formation of life, where one can develop and keep one’s individuality”. This comprises the right to “remain alone” to the exclusion of being exposed to others. Everybody is entitled to decide autonomously if and how far others may report on certain aspects of his private life. In substance this privacy right inter alia encompasses the portrait of a person, private facts and words uttered in private.
Nevertheless, certain public interests may justify an infringement of privacy: Recognised are, for instance, the public’s right to information and the freedom of the press. However, the *Bundesverfassungsgericht defined the balancing test between both interests in such a way to give strong protection to personality rights as they can be found in the central provisions of the Basic law. The Court held that in those circumstances it has to be established in every single case why the public interest should have priority and whether the infringement was absolutely necessary to pursue the public interest goal, taking into account its intensity and scope. That way the Court developed a general balancing test that clearly sought to recognise and protect individual privacy rights.
In the specific field of crime reporting, the Court weighed the public interest in publication against the criminal’s privacy rights. They said that the severity and time of the crime are of utmost importance. In the case of a recent crime of some severity, the publication rights, as a general rule, gain priority. In the case of a documentary ten years after a crime in the temporary context of a criminal’s release the publication must be such as not to harm his personality for a second time. Pictures showing the offender at the time of release or the announcement of his full name might hinder his re-integration into society and are, thus, prohibited. To this extent the claim of the driver against the ZDF film was well founded." (http://www.law.ed.ac.uk/ahrc/personality/gercases.asp#Lebach)
Fundamental rules for freedom of speech restrictions
a. EU (as defined by ECHR)
PRESCRIBED BY THE LAW:
1. "The law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.
2. "Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
CONTENTUAL PRINCIPLES
b. USA (as defined by the Supreme Court of the USA)
CLEAR AND PRESENT DANGER DOCTRINE
BAD TENDENCY DOCTRINE
PREFERRED POSITION DOCTRINE
FIGHTING WORDS
Term “public interest”
Crone, Tom: Law and the Media. Oxford : Elsevier Science. 2002. p. 16.: „It is for the defendant to prove that the matter upon which he passed comment is one of public interest. The judge, rather than the jury, rules on this question if it is at issue. There is a difference between matters that the public find interesting and matters of public interest. The court has adopted a generous approach in defining the legitimate areas of public interest.
"One established exception is the defence of comment on a matter of public interest. This defence is available to everyone, and is of particular importance to the media. The freedom of expression protected by this defence has long been regarded by the common law as a basic right, long before the emergence of human rights conventions. In 1863 Crompton J. observed in Campbell v. Spottiswoode (1863) 3 B. & S. 769, 779, that 'it is the right of all the Queen's subjects to discuss public matters'. The defence is wide in its scope. Public interest has never been defined, but in London Artists Ltd. v. Littler [1969] 2 Q.B. 375, 391, Lord Denning M.R. rightly said that it is not to be confined within narrow limits. He continued: