Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The European Court of Human Rights (“ECtHR“), by the majority of 14 judges, ruled that the United Kingdom had violated the applicants’ freedom of expression by initiating criminal proceedings against her for the dissemination of 1.5 million leaflets during a political campaign. The applicant was against abortion and the leaflets contained information about the opinions of three candidates for election on abortion. She was charged with violating a UK election law enacted to preserve fair and democratic elections, which prohibited spending more than five pounds sterling on disseminating information to electors to promote or procure the election of a candidate in the period of four to six weeks before elections. The ECtHR found the mere fact of initiating the criminal proceedings against the applicant interfered with her right to freedom of expression. Such interference was not proportionate since she only wanted to inform her fellow citizens about the opinions of the three candidates on abortion. Even though she had been able to spend more than 5 GBP in any other period except just before the elections (four to six weeks), the ECtHR found that she would not have achieved the same effect during some other period.
The applicant, Mrs. Phyllis Bowman, was the executive director of the Society for the Protection of the Unborn Child (“SPUC”), an organization opposed to abortion and human embyro experimentation. SPUC sought changes to the law in the United Kingdom which permitted abortion up to 22 weeks and embryo experimentation up to fourteen days. Prior to the parliamentary elections in April 1992, Mrs. Bowman arranged one and a half million leaflets to be distributed all over the United Kingdom, including approximately 25000 copies in the constituency of Halifax. According to the applicant, it was important for the public to be aware of the opinions of candidates standing for the election with regard to abortion and related issues. Thus, her organization sought to disseminate information about the attitudes of politicians on the issue of abortion. The first paragraph of the leaflet noted:
“We are not telling you how to vote, but it is essential for you to check on Candidates’ voting intentions on abortion and on the use of the human embryo as a guinea-pig” [p. 8].
Three short passages on candidates’ stance on abortion followed the first paragraph. On the backside of the leaflet, there were a set of 16 bullets along with a picture marking various phases of development of an unborn child.
On account of the distribution of the leaflets, the applicant was charged based on the subsections 75(1) and (5) of the Representation of the People Act, 1983 (“the 1983 Act”), which had prohibited “expenditure of more than five pounds sterling (‘GBP’) by an unauthorized person during the period before an election on conveying information to electors with a view to promoting or procuring the election of a candidate”. Remarkably, Mrs. Bowman was also convicted twice, in 1979 and 1982, for similar offenses. In 1979, Mrs Bowman was convicted of an offence in respect of a leaflet distributed prior to the Ilford North by-election and in 1982 she had also been convicted in respect of a leaflet distributed during the elections for the European Parliament. On both occasions she was ordered to pay a fine and the prosecution costs.
At a trial dated September 27, 1993, the judge of the Southwark Crown Court ordered her acquittal for distribution of leaflets on abortion, on procedural grounds. The proceedings were, however, reported in the press. Mrs. Bowman and SPUC subsequently complained before the European Commission of Human Rights that the prosecution brought against Mrs. Bowman violated their rights to freedom of expression under Article 10 and the right to effective remedy under Article 13 of the European Convention of Human Rights (“ECHR”).
The Grand Chamber delivered the judgment of the Court. The primary issue the ECtHR had to decide was whether the prosecution of the applicant gave her the status of a ‘victim’, and if it did, was there a violation of Article 10 of ECHR. Additionally, the applicant and SPUC invoked Article 13 of ECHR, though the Commission declared allegations on this front inadmissible.
Article 10 of the ECHR prescribes the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The scope of the right under Article 10 is limited, inter alia, to the extent necessary in a democratic society, in the interests of national security, territorial integrity or public safety and for the prevention of disorder or crime. Article 13, on the other hand, guarantees everyone whose rights and freedoms as set forth in the ECHR an effective remedy before a national authority.
Before the Court, the Government contended that the applicant was not a “victim” within the meaning prescribed under ECHR, especially since the trial judge had directed the jury to acquit the applicant and that “in these circumstances it [was] impossible to say that she would have been convicted had the trial continued or that the law [had been] applied to her detriment” [p. 13]. Moreover, the Government claimed that even if she did have the status of a victim, there was no violation of the right to freedom of expression under Article 10. The applicant, however, argued that her status of the victim was a product of the anxiety, stigma, and expense involved in her interrogation by the police, her prosecution and the surrounding publicity that ensued.
On the issue of whether the applicant had a victim status, the ECtHR held that irrespective of the acquittal of the applicant, there was a measure of implementation of the law, namely a prosecution, against Mrs. Bowman. The mere fact that the authorities had decided to commence proceedings against the applicant was “a strong indication to her that, unless she had modified her behavior during future elections, she would run the risk of being prosecuted again and possibly convicted and punished” [p. 13]. Thus, even though the applicant was acquitted (for a technical reason), she still had the victim status.
On the merits, the applicant opined that the Government of United Kingdom had interfered in her freedom of expression, since there was a “fear of prosecution” caused by the fact that the prosecuting authorities obviously regarded her conduct as falling within the statutory prohibition caused. However, it was claimed by the government that Article 75 of the 1983 Act restricted only the freedom of unauthorised persons to incur expenditure with a view to promoting or procuring the election of a particular candidate in a parliamentary election, but not their freedom to express opinions or disseminate information more generally.
The ECtHR analysed Mrs. Bowman’s right to freedom of expression under Article 10 in accordance with the three-part test of the interference’s prescription by law, pursuance of a legitimate aim, and the necessity in a democratic society. Since the applicant did not question the lawfulness of the interference, it was assumed that the restriction was prescribed by law. On other fronts, the applicant however argued that there had not been any legitimate aim for prosecuting her since the applicable law (section 75 of the 1983 Act) only operated to curtail democratic freedom of expression. Besides, the restriction on expenditure mandated by the provision did not ensure equality between candidates since major political parties were allowed to spend unlimited amounts on campaigning at national level as long as they did not attempt to promote or prejudice any particular candidate. The Government, on the other side, argued that even if there had been any interference with the applicant’s freedom of expression, such interference had pursued a legitimate aim of protection of the rights of others – by promoting fairness between competing candidates and preventing wealthy parties from campaigning for/against a particular candidate, by restricting the expenditure to ensure candidates remained independent and by preventing the political debate at election times from being distorted by having the discussion shifted away from matters of general concern to centre on single issues.
On merits, the ECtHR had no doubt that the restriction pursued a legitimate aim, since the purpose of section 75 was to contribute towards securing equality between candidates for the election and the protection of the rights of the electorate of Halifax.
The ECtHR finally delved into an analysis on the issue of necessity of the restriction in a democratic society. On this front, the government argued that section 75 imposed only a partial restriction on expenditure, which was no more extensive than was necessary to achieve the legitimate aims. Further, the applicant had other means of communication open to inform the electorate without opposing or promoting specific candidates. The applicant, however, argued that the restriction was disproportionate as there was no “pressing need” to suppress the dissemination of factually correct information about candidates on important moral issues. Specifically, she argued that there was no evidence that her leaflets had disadvantaged any particular candidate and that the restriction was illogical in light of the fact that no limits were placed on the powers of mass media to publish material in favour of or in opposition to candidates or their supporters, as they did not attempt to promote or prejudice the electoral prospects of any particular candidate. [p. 16]
The ECtHR observed that the limitation prescribed under section 75 was one of the “many checks and balances” enacted to preserve fair and democratic elections. It decided to consider the right to freedom of expression in the light of the right to free elections protected by Article 3 of Protocol No. 1 to ECHR. The two rights formed “the bedrock of any democratic system” (Lingens v. Austria, App. no. 9815/82 (1986), §§ 41–42). For this reason, the circulation of opinions and information was important during the period preceding elections. Nevertheless, the Court also observed that there are occasions when these two rights may collide with each other – in such cases the member states have a margin of appreciation in making a balance between these two rights during a political campaign.
After a theoretical disposition on the rights applicable in this case, the majority delivered their reasoning by applying the law to the prevalent facts. It paid special attention to the fact that the restriction on freedom of expression applied during the period of four to six weeks before the general election. Thus, although Mrs. Bowman was in a position to have campaigned freely during any other period, using the leaflets during those periods would not have served the purpose. Namely, it was the Courts’ point of view that the purpose of the leaflets had been “to inform the people of Halifax about the three candidates’ voting records and attitudes on abortion, during the critical period when their minds were focused on their choice of representative” [p. 16]. The Court also noted that the prescribed sum of 5 GBP under section 75 of the 1983 Act was low.
The ECtHR underscored that the Government’s argument – that the applicant could have used alternative methods to convey information to the electorate – was not satisfactory. Particularly, it was not clear that there were other effective channels of communication since it was not demonstrated that the applicant had been in a position of ensuring that leaflets’ content will be published in a newspaper or broadcasted on radio or TV. An alternative for the applicant was to herself run for the election and become entitled to incur statutory expenses allowed to candidates, but this would have required her to pay a deposit of GBP 500 which she would “in all probability have forfeited”. Additionally, her intention was not to run for the elections, “but only to distribute leaflets to voters” [p. 17].
The Court, therefore, found that section 75 of the 1983 Act had prohibited the applicant from publishing information with a view to influence the voters of Halifax in favor of an anti-abortion candidate. The Court gave special attention to the fact that similar restrictions were not placed “upon the freedom of the press to support or oppose the election of any particular candidate or upon political parties and their supporters to advertise at the national or regional level, provided that such advertisements were not intended to promote or prejudice the electoral prospects of any particular candidate in any particular constituency” [p. 18]. Thus, the ECtHR concluded that the restriction was disproportionate to the aim pursued.
On the basis of the facts above, the Court found a violation of the right to freedom of expression enshrined in Article 10 of the ECHR. It believed that the declaration of violation is a just satisfaction for any non-pecuniary damage suffered by the applicant. Hence, there was no monetary award given to the applicant.
Six judges delivered three dissenting opinions in the case. A joint concurring opinion by Judge Pettiti, Judge Lopes Rocha and Judge Casadevall argued that section 75 of the 1983 Act was not a “total barrier” to the applicant’s publishing “information with a view to influencing the voters of Halifax in favour of an anti-abortion candidate” [p. 18] as it did not prohibit the publication of facts or comment for the information of the general public [p. 21].
Judge Valticos, on the other hand, did not concur with a violation of Article 10 of the ECHR. He emphasized the importance of the British electoral rules for democracy. While admitting that the law on restricting expenditures had one weakness (i.e. precluding payment of even small amounts), this had not been the case with respect to section 75 of the 1983 Act as applied to the present case. Namely, “the amount concerned was very large since it was enough for one and a half million leaflets” [p. 22].
Judges Loiziou, Baka, and Jambrek disputed the majority’s finding on disproportionality. The Judges relied upon the concept of margin of appreciation. Furthermore, they believed that Mrs. Bowman did have “several other ways of expressing one’s convictions and bringing them to the attention of the electorate without promoting any particular candidate in a particular constituency”. Moreover, their belief was based upon the fact that the impugned restriction was the part of the system founded on checks and balances. The election system, in their opinion, had offered “equality of arms as between candidates”.
Judge Sir Freeland wrote the last dissenting opinion and he was joined by Judge Levits. He started by referring to the importance of parliamentary elections and the intent of the impugned law (the promotion of fairness in elections and equality between candidates). The judge asked for careful reading of the disputed provision. Namely, such provision does not prohibit expenditure for disseminating “factual material or comment intended merely to inform the public”. Thus, to convict the defendant, the jury must be “satisfied beyond reasonable doubt that the defendant’s desire to advance the electoral prospects of one candidate or to prejudice those of another was one of the reasons which played a part in inducing him or her to incur the expense”. Sir Freeland was not sure if this would be the case with the applicant or if she would succeed by arguing that the leaflets served only to communicate factually accurate information.
He argued that the “achievement of the legitimate aim of securing equality between candidates surely militate[d] more in favour of retaining (or even reducing) the very low limit on expenditure by third parties than in favour of increasing (or even removing) it. Further, he noted that the interference in the right to freedom of expression relating to the expenditure by third parties to promote or harm the electoral prospects of a particular candidate, which had been based upon section 75 of the 1983 Act, was narrow in scope. Also, the Judge opined that the method the State had used for regulating elections, fell within the margin of appreciation, since the State is allowed to enact such rules upon its own historical experience and current circumstances. Finally, speaking of proportionality, he relied on the two facts. Firstly, the State had not prevented the dissemination of leaflets, and, secondly, the prosecution failed (even for technical reasons). Hence, the interference was, in his opinion, proportionate.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment is valuable since it emphasizes the importance of the political debate during the period before elections. It is not the same to speak about issues important for public debate one year before elections or two weeks before elections. Prohibiting speech during the latter period significantly limits the freedom of expression.
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