Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Fourth Section of the European Court of Human Rights held that the rights of the Applicants to freedom of expression and freedom of assembly had not been breached when the private owner of a town center refused permission for them to campaign and collect signatures on its premises.
The Applicants argued that the State was responsible for the interference with their rights because it had built and transferred the land into private ownership and that the State had a positive obligation to secure the exercise of their rights because the information and ideas they wished to impart constituted political expression.
The Court reasoned that States may have a positive obligation to regulate the access to private property to protect the enjoyment of the rights contained on the European Convention on Human Rights (ECHR) when the bar on the access to private property has the effect of preventing any effective exercise of those rights. However in this case, the Court found that the Applicants had not been effectively prevented from communicating with their fellow citizens as they could and had exercised their rights through other means.
This case was contributed by the Open Society Justice Initiative
The town center of Washington in the U.K. was originally built by Washington Development Corporation, a body set up by the U.K. government body, but was later sold to Postel, a private company. The center comprised a shopping mall, the surrounding car parks and walkways. Several public services were also in the vicinity of the center.
Eileen Appleby, Pamela Bresford and Robert Alphonsus, residents of Washington, formed the environmental group Washington First Forum to campaign against a proposal from the City of Sunderland College to build on the only playing field in the vicinity of Washington town center that was available for use by the local community.
On or around March 14 1998 Ms. Appleby attempted to set up stands to collect signatures against the proposal at the entrance of the shopping mall but security guards employed by Postel wouldn’t allow her to do this on land or premises owned by the company.
In March 1998 the members of the group obtained permission from the owner of a hypermarket in the shopping mall to collect signatures inside the market. However, in April 1998 they were denied permission for a second signature collection campaign.
On 10 April 1998, Mr. Alphonsus as chair of the Washington First Forum wrote a letter to the manager of the center asking permission to set up stands and canvass views of the public either inside the mall itself or in adjacent car parks and offered to pay to be allowed to do so. However, the manager refused permission on behalf of Postel claiming the petition was in conflict with the company’s policy of political neutrality [para. 16].
The group resorted to alternative means for its campaign such as erecting stands by the roadside on public footpaths and going to the old town center (which was visited by a much smaller number of residents in comparison to the new center owned by Postel) [para. 18].
Ms. Appleby, Ms. Bresford, Mr. Alphonsus and the Washington First Forum claimed that their rights under Articles 10 (Freedom of Expression) and 11 (Freedom of Assembly) of the European Convention on Human Rights had been violated. The Applicants also claimed violation of Article 13 arguing that they had no remedy for their complaints under domestic law and they brought the case directly to the ECtHR on the basis that there were no remedies available within the U.K.
The Court declared their application admissible on November 12, 2002.
The issue before the Court’s Fourth Section was whether the freedoms of expression and assembly entail a positive obligation on States to regulate private property for the purposes of ensuring that prospective speakers had opportunities to access privately-owned forums, such as shopping centers.
The Applicants claimed that access to the town center was essential for the exercise of their rights of freedom of expression and assembly because it was the most effective way of communicating their ideas to the public. They argued that the State bore direct responsibility for the interference with their Convention rights because it had built the new town center on public land and had later approved its transfer to private ownership. They also argued that States have a general obligation to seek a balance between the rights of property owners and the protection of individuals’ rights of freedom of expression and assembly and that the U.K had failed in this duty by granting the property owners absolute discretion as to who should have access to their land without proper consideration of the rights of those seeking to exercise their freedom of expression and assembly on that land. They suggested that the U.K.could remedy the situation by introducing legislation based on ‘quasi-public’ land. The Applicants also claimed that Postel was not politically neutral because it had previously given permission to others to campaign on its property [paras. 33 and 34].
The U.K. Government countered that it was not responsible for Postel’s interference with the Applicants’ rights. It said that the fact that Postel’s land was previously in public ownership was irrelevant to the case. Whilst it acknowledged that freedom of expression may sometimes entail positive obligations, it argued that such obligations did not apply in this case because the Applicants had had other opportunities to exercise their rights and had indeed used them. It also considered that it would be excessively burdensome to require States to always negotiate public access rights when selling publicly-owned land to private parties. Further, the Government said that a fair balance between the competing interests had been struck because it was legitimate for property owners to object to people exercising their freedoms of expression or assembly on their land when they had the opportunity exercise those rights on public land or in the media [paras. 36-38].
The Court primarily analyzed the case with reference to Article 10, freedom of expression, but stated that the same considerations applied in respect of the Article 11 right to freedom of assembly. The Court firstly reiterated relevant general principles established in its case law, in particular it said that; “Genuine, effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals”; and “In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual” [para 39].
It also reviewed case law from the U.S. and Canada both in favor and against an obligation to accommodate freedom of expression on privately-owned property open to the public. However, it concluded that “It cannot be said that there is as yet any emerging consensus that could assist the Court in its examination in this case concerning Article 10 of the Convention” [para. 46]. In particular it noted that the U.S. Supreme Court, as opposed to various State courts, “has refrained from holding that there is a federal constitutional right of free speech in a privately owned shopping mall” [para. 46].
The Court pointed out that the right to freedom of expression under Article 10 “does not bestow any freedom of forum for the exercise of that right” but said that when “the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of the Convention rights by regulating property rights”. In this regard it cited U.S. case Marsh v. Alabama which related to a corporate town where the entire municipality was controlled by a private body [para 47].
The Court was not persuaded by the Applicants’ argument that campaigning in the town center owned by Postel was the easiest and most effective way to reach people. It considered that the refusal of permission to campaign in this center had not effectively prevented the Applicants from communicating their views because they had the opportunity to obtain individual authorizations from the businesses within the shopping center, campaign on the public access paths into the area, or employ alternative means such as calling door-to-door or seeking exposure in the local press, radio and television [para. 48].
The Court went on to consider the Applicants’ Article 13 claim that it didn’t have an effective remedy in domestic law because English case-law indicated that the owner of a shopping center could give a bad reason or no reason at all for the exclusion of individuals from its land and no judicial review lies against a decision of a private entity. Based on its own jurisprudence, the Court said that Article 13 cannot be interpreted as requiring a remedy against the national state because that would be imposing a requirement on the Contracting State to incorporate the Convention. It said that since the U.K. didn’t incorporate the Convention until October 2 2000 when the Human Rights Act took effect no remedy existed for the Applicants, following that date they could have raised their complaints before the domestic courts.
The Court concluded by six votes to one that the Applicants rights under Articles 10 and 11 of the ECHR had not been violated.
The Court unanimously held that there had been no violation of Article 13.
Judge Maruste issued a Partly Dissenting Opinion. He said that it could not be the case that public authorities could divest themselves of all responsibility to protect rights and freedoms other than property rights. He said they still bear responsibility for deciding how the forum created by them is to be used and for ensuring that public interests and individuals’ rights are respected. “It is in the public interest to permit reasonable exercise of individual rights and freedoms, including the freedoms of speech and assembly on the property of a privately owned shopping center”. In the Judge’s opinion the authorities of the U.K. had not performed an adequate balancing exercise and had failed to regulate how the privately owned forum publicum was to be used in the public interest.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court acknowledged that States’ obligations in relation to the protection of freedom of expression could, under certain circumstances, impose upon them a positive requirement to regulate the access to private property in order to guarantee the enjoyment of that right. However, the Court said this would only be required of States when “the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed” [para. 47]. This sets a high probative bar for applicants claiming that their freedom of expression has been infringed due to an inability to access privately owned forums, a standard that wasn’t satisfied by the Applicants in this case.
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