COMPARATIVE MEDIA LAW SESSION 9.d Dirk VOORHOOF Ghent University (->contact)

Freedom of expression on public places Freedom of expression /demonstration and other rights FOX & EU-freedoms FOX & property rights - Schmidberger (Austria) – EC - Case of Appleby v. UK – ECourtHR

Schmidberger v. Austria (ECJ) - International transport undertaking seeking damages against Austria that failed to ban a demonstration (free movement of goods) - questions to ECJ for a preliminary ruling

Schmidberger v. Austria (ECJ) - The fact that a member state abstains from taking action or fails to adopt adequate measures to prevent obstacles to the free movement of goods that are created by private individuals on its territory is likely to obstruct intra-Community trade

Schmidberger v. Austria (ECJ) - EU-member states must take all necessary and appropriate measures to ensure the fundamental freedom of movement of goods is respected on their territory

Schmidberger v. Austria (ECJ) - The Austrian authorities were inspired by the considerations linked to respect of the fundamental rights of demonstrators to freedom of expression and freedom of assembly, which are enshrined in and guaranteed by the ECHR and the Austrian Constitution

Schmidberger v. Austria (ECJ) - protection of human rights is integral part of general principles of law > ECJ - ECHR has special significance in this respect - Art. F.2 Treaty of European Union ( par. 72 ) > WHAT prevails??? ° EU fundamental freedom < goods ° ECHR fundamental freedom < expression

Schmidberger v. Austria (ECJ) - Free movement of goods is fundamental principle, it may however be subject to restrictions for reasons in relation to the public interest (art. 36 EU-Treaty) - Freedom of expression and assembly as guaranteed by Art. 10 and 11 ECHR may also be subject to restrictions by objectives in the public interest, when in accordance with § 2

Schmidberger v. Austria (ECJ) - Arguments legitimizing the approach of the Austrian authorities with regard the respect of freedom of expression by the demonstrators?

Arguments? 1. Demonstration after request for authorisation – no ban 2. Limited action (time/place) 3. Aim was not to restrict trade of goods of particular type or source Aim was manifesting public opinion (environment protection) = importance in society

Arguments? 4. Various administrative and supportive measures have been taken by authorities in order to limit as far as possible the disruption of road traffic - extensive publicity! - media! + alternative routes

Arguments? 5. No general, serious and repeated disruptions, only isolated incident in question 6. Ban of demonstration would have constituted unacceptable interference with fundamental rights of demonstrators to gather and express peacefully their opinions in public + other risks !

Schmidberger - Austria,12 June 2003 Conclusion of ECourt Justice The fact that the Austrian authorities did not ban a demonstration in these circumstances is not incompatible with the Art. 30 and 34 of the Treaty (> no liability!)

Appleby and Others v. UK (ECHR) - Applicants represent environmental group “Washington First Forum” Washington/Newcastle

Appleby and Others v. UK (ECHR) - Prevented from meeting in the town centre, a privately owned shopping centre (the “Galleries”), to impart information and ideas about proposed local development plans

Appleby and Others v. UK (ECHR) - Applicants were stopped by security guards to display posters and distribute leaflets alerting the public to the likely loss of open space in the local community. Ordered to remove their stands and stop collecting signatures.

Appleby and Others v. UK (ECHR) - Written refusal of permission by manager of the “Galleries” to canvas or collect signatures in shopping center

Appleby and Others v. UK (ECHR) - Common law: property rights, implied invitation may be revoked - UK CIN Properties Ltd. V. Rawlins - USA: First amendment and property rights – free speech provisions did not apply to privately owned shopping centre & First Amendment does not prevent a private shopping centre owner from prohibiting distribution on its premises of leaflets unrelated to its own operations

Appleby and Others v. UK (ECHR) 1.General principles 1. Key importance of freedom of expression as one of the preconditions for a functioning democracy 2. Effective exercise of this freedom does not only depend merely on the state’s duty not to interfere, but may require positive measures - Interests society/individual - Fair balance - No impossible or disproportionate burden on the authorities

Appleby and Others v. UK (ECHR) 2.Arguments  Interference by private company, Government does not bear any DIRECT responsibility for restriction in the applicant’s freedom of expression -> Question is: has Government failed in any positive obligation to protect freedom of expression?  Action > topic of public interest, debate local policy (urban planning, green area)

Appleby and Others v. UK (ECHR) 2. Arguments 3. Art. 10 Convention, but applicants’ freedom of expression is not unlimited 4. Article 1 of Protocol 1, but property right of owner of shopping center is not unlimited

Appleby and Others v. UK (ECHR) 2.Arguments 5. Shopping centre is also town centre (reference to US-case law) > “quasi-public place”? 6. US Supreme Court: no First Amendment protection of right of free speech in privately owned shopping mall

Appleby and Others v. UK (ECHR) 2.Arguments 7. No right of entry to private property BUT!!! Court does not exclude positive obligation for state by regulating property rights e.g. where bar on access has effect of preventing any exercise of freedom of expression and essence of right is destroyed

Appleby and Others v. UK (ECHR) 2.Arguments 8. Restriction on acces was limited to entrance and passageways - access to shops, supermarket - leaflets on public access paths to the area 9. Other possibilities in old town centre ( Galleries = easiest and most effective?)

Appleby and Others v. UK (ECHR) 2. Arguments 10. Applicants cannot claim that they were as a result of the refusal of the private company effectively prevented from communicating their views to their fellow citizens. Their action has had support

Appleby and Others v. UK (ECHR) 3. Conclusion Having regard to the nature and scope of the restriction in this case, the Court is of the opinion that the UK has not failed in any positive obligation to protect the applicants’ freedom of expression NO VIOLATION OF ARTICLE 10 (art. 11)

Appleby and Others v. UK (ECHR) Discussion (see also dissenting opinion) - “forum publicum” - matter of public interest - unequal treatment > other groups > justified expectation - no disturbance of public peace - precedence to freedom of expression