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Introduction
Freedom of expression does not only indicate the presence of democracy in a state in its
own right, but it also plays a central part in the protection of other rights under the convention.
Without the presence of right to freedom of expression it is impossible for a country to be
independent and democratic and this proposition is undeniable. Freedom of expression is a right
in itself which lets individuals live a free life in a state where they can speak up according to
their mind and opinion. However, at the same time, freedom of expression can also conflict with
other rights protected by the convention such as the right to fair trail, right to confidentiality and
the criminal libel act. According to the Convention, Article 10 gives the right to any individual,
group or type of media to express notwithstanding its content1.
The article 10 of the European Convention on Human Rights talks about the freedom of
expression and states that every individual in a society holds the right to express freely and this
right includes freedom to hold opinion, receive and impart information, facts and ideas without
interference of the state or any other authoritative figure 2. However, it also briefs that these
rights can only be exercised in a democratic society when there is no harm of anarchy and
criminal intention behind the act. In this paper a case study is presented that relates to article 10
of the convention in the European Court of Human Rights and presents the position of Cynthia,
Damian and Tracey and their right of freedom of expression under the convention in Cynthia,
Damian and Tracey v State of Dystopia case.
Case Summary
1
Council of Europe (1963), Yearbook of the European Convention on Human Rights/annuaire De La Convention
Europeenne Des Droits De L'homme1962, Volume 5, Martinus Nijhoff Publishers, Boston
2
Greer. S.C. (2006), The European Convention on Human Rights: Achievements, Problems And Prospects,
Cambridge University Press, Cambridge.
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The case being studied in this research is about Cynthia, Damian and Tracey v State of
Dystopia. Dystopia which is a party to the European Convention on Human Rights. The Minister
for Culture in the government of Dystopia, Trevor Tate, made a speech in which he said that the
government will ensure that public funding of art does not go to work that is immoral,
degenerate or deviant. Cynthia, a journalist at the Recorder, a national newspaper in Dystopia,
attacked this new policy in her weekly column. She said that Trevor Tate is the almost
degenerate and immoral politician of his generational. Trevor brought a prosecution against
Cynthia under Dystopia Criminal Libel Act. Under this law a person is guilty of an offence if
they make statements about another character that they cannot prove to be true. Cynthia was
found guilty of an offence under the Criminal Libel Act and was fined 20,000 Euros. Damian
and Tracey are both artists working in Dystopia. Damian produced a trio of paintings called, “A
Portrait of Trevor Tate: immoral, degenerate and deviant”. The paintings showed Mr. Tate in
explicit sexual poses with various historical and religious figures. Damian wanted to exhibit the
paintings at a private gallery in Dystopia but, aware of the Dystopia laws on public decency,
asked for the advice of the police. They said the exhibition of the paintings will be lawful as long
as he places a warning at the entrance to the gallery, restricts entry to adults over 18 and only
opens the gallery after 8pm in the evening. Damian believed these restrictions will dissuade
people from seeing his work. Tracey previously received grants from the Dystopia Department
of Culture to help stage exhibitions of her work. She wished to apply to the Department for a
grant to help put on an exhibition of her new video installation. She was informed by the
Dystopia Department of Culture that gave the nature of her work and as a result of the recent
change in policy announced by Minister Tate, they were no longer provided funding to support
future exhibitions of her work. Cynthia, Damian and Tracey wished to challenge Dystopia
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behaviour under Art 10 of the European Convention on Human Rights. Their application was
declared admissible in Strasbourg.
Discussion
The case summary presented above discusses two major points. The freedom given to an
individual on the basis of article 10 and the restrictions on article 10 on the basis of Criminal
Libel Act. According to my consent, I believe that Cynthia, Damian and Tracey hold the right to
express their opinion in any regard with freedom and their actions were not illegal in any way
that they could be subjected to any fine. The ideas promoting racism and the Nazi ideology are
the only two content-based restrictions applied by the Commission on Article 10 as it incites to
hatred and discrimination3. On the basis of Article 17 of the Convention, the government has
instructed that freedom of expression is legal until and unless it leads to any destruction or
anarchy within the society. In the case of Cynthia, Damian and Tracey v State of Dystopia, the
main concern was about the opinion that these three individuals held regarding the minister and
his work.
Freedom to Hold Opinion
Freedom to hold an opinion is a prior condition to article 10 that states the freedom to
express. It enjoys absolute protection in the sense that any restrictions placed on article 10 are
inapplicable on it. It has been stated by the ministers that any restrictions to the right to hold
opinion will be a direct inconsistency with the nature of the democratic society3. States are not
allowed to involve, change or restrict the opinions being held by the citizens regarding any
3
Jackson, D.W. (1997), The United Kingdom Confronts the European Convention on Human Rights, University
Press of Florida, Florida
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person, thing or policy. In article 10, paragraph 1, it has been clearly stated that an individual
holds three rights in a democratic society i.e. freedom to hold opinion, freedom to impart
information and ideas and freedom to receive information and ideas and these freedoms must be
exercised by the public freely without any interference of the second party and the state 4.
Individuals holding the right to freedom of opinion are protected against the negative
consequences and the right also includes the negative freedom of not being compelled by
someone or something. Cynthia, Damian and Tracey in this case provided their own opinions
about the minister for Culture, Mr. Trevor Tate. They held complete right to express their
opinion without any interference from the government or state as this right was given to them
under the Convention. Moreover, their actions were not a source of any anarchy or disintegration
in the society as they were completely based on their personal thoughts and opinions.
Distinction between Facts and Opinion
This case can be looked through another perspective i.e. imparting of facts and opinion
and this difference has been made distinct by the government. Opinions are considered as
viewpoints and/or personal thoughts and statements regarding an event or a situation and are not
accessed to be proven right or wrong, however, a fact, on whose basis the opinion is formed, to
be proven right or wrong. Cynthia, Damian and Tracey provided their opinion about the minister
of Culture and his policies. In order to convict the three applicants, it is the duty of the court to
investigate the facts behind the formation of their opinion and then proceed, but even in this
situation they are not liable to any punishment by the court of law.
Freedom of Press
4
Council of Europe (2001), Case Law Concerning Article 10 of the European Convention on Human Rights, Volume
88, Council of Europe, Strasbourg
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Cynthia, the journalist, being a member of the press also holds the right to express her
opinion under article 10 which does not directly talks about the freedom of the press but the
court has presented different cases in which it has been seen that press holds complete right to
express. The role of the press is considered of a “political watchdog” which provides both
positives and negatives of the political system in a society and this status of the press was given
by the court. There has been several articles criticizing, praising and discussing different
politicians, policies and social matters in past. I believe that Cynthia was not liable under the
criminal act as her writing was completely based on her opinion5.
Conclusion
It can be concluded with the research presented above that Article 10 of the Convention
provides a complete right to every individual of a society to hold opinions and express those
opinions and no minister or state has any right to amend the constitution according to their
beliefs. Therefore in the case Cynthia, Damian and Tracey v State of Dystopia, I believe the
three applicants were right under the freedoms given to them by the Convention and the
accusation made on them were useless. They should have been given complete support by the
authorities to express their thoughts and if there was any disregard, than the court should have
investigated the facts that formed these opinions at the first place.
5
Marty, M.D. (1992), The European Convention for the Protection of Human Rights:
International Protection versus National Restrictions, Martinus Nijhoff Publishers, Boston
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Footnotes
Council of Europe (1963), Yearbook of the European Convention on Human Rights/annuaire De
La Convention Europeenne Des Droits De L'homme1962, Volume 5, Martinus Nijhoff
Publishers, Boston
Council of Europe (2001), Case Law Concerning Article 10 of the European Convention on
Human Rights, Volume 88, Council of Europe, Strasbourg
Greer. S.C. (2006), The European Convention on Human Rights: Achievements, Problems And
Prospects, Cambridge University Press, Cambridge
Jackson, D.W. (1997), The United Kingdom Confronts the European Convention on Human
Rights, University Press of Florida, Florida
Marty, M.D. (1992), The European Convention for the Protection of Human Rights:
International Protection versus National Restrictions, Martinus Nijhoff Publishers, Boston