Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
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The European Court of Human Rights held that the confiscation of a book deemed to be obscene did not violate the right to freedom of expression. Richard Handyside purchased the British rights to a book that aimed to educate teenage readers about sex (including subsections on issues such as masturbation, pornography, homosexuality, abortion, etc) and was convicted of possessing obscene publications for gain under the Obscene Publications Act. The Court concluded that the Act’s intent to protect minors, as well as its measured and precise application, met the qualifications for a restriction on free speech within a State’s margin of appreciation to determine what was “necessary in a democratic society.”
This was one of the first freedom of expression cases considered by the Court, and it set a strong standard for the examination of these cases which is applied up until the present day. In particular, it established the principle that “freedom of expression…is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”
This case analysis was contributed by ARTICLE 19
Richard Handyside was the owner of “Stage 1” publishers. He purchased British rights of “The Little Red Schoolbook”, written by Søren Hansen and Jesper Jensen. The book was initially published in 1969 in Denmark and translations were later published in Belgium, Finland, France, West Germany, Greece, Iceland, Italy, the Netherlands, Norway, Sweden, and Switzerland as well as several non-European countries. One of the chapters contained a 26-page section concerning “Sex”. Handyside sent out several hundred review copies of the book, together with a press release, to a selection of publications from national and local newspapers to educational and medical journals. Advertisements were also placed for the book. The book became subject of extensive press comment, with mixed reactions with regards to the content.
After receiving a number of complaints, the Director of Public Prosecutions asked the Metropolitan Police to investigate whether the book breached obscenity laws. As a result, more than a thousand copies of the book were provisionally seized under the Obscene Publications Act, together with leaflets, posters, showcards, and correspondence relating to the book’s publication and sale. Subsequently, summonses were issued against Handyside for having in his possession obscene books for publication for gain. Handyside ceased distribution and advised bookshops accordingly. On trial, Handyside was found guilty of possessing obscene publications for gain, fined and ordered to pay costs. His appeal was unsuccessful.
The European Court of Human Rights held that Handyside’s conviction constituted an interference with the right to freedom of expression which had been ‘prescribed by law’ and pursued the legitimate aim of protecting morals; at issue was whether the interference had been ‘necessary in a democratic society’.
The Court considered that there was no European consensus on the protection of public morals, particularly as regards children. Therefore, States should be left a margin of appreciation in interpreting whether a particular measure is ‘necessary’. At the same time, the Court stressed that the test of ‘necessity’ was a strict one: “[W]hilst the adjective ‘necessary’ … is not synonymous with ‘indispensable’ … the words ‘absolutely necessary’ and ‘strictly necessary’ …, neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’. [para. 48]
The Court further stated that it was necessary to pay the utmost attention to the principles that characterize a ‘democratic society’. In particular, it held that, “[f]reedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to [legitimate restrictions] it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.” [para. 49]
The Court attached particular importance to the fact that the publication was aimed above all at children and adolescents aged from twelve to eighteen. Being direct, factual and reduced to essentials in style, it was easily within the comprehension of even the youngest of such readers. The applicant had made it clear that he planned a widespread circulation, and having advertised it widely, he had set a modest sale price and chosen a title suggesting that the work was some kind of handbook for use in schools. While the book contained purely factual information that was generally correct and useful, it also included passages that young people at a critical stage of their development could have interpreted as an encouragement to indulge in precocious activities harmful for them or even to commit certain criminal offences. Furthermore, the Court considered that the fact that no proceedings had been instituted against the revised edition, which differed extensively from the original edition on the points at issue, suggested that the authorities had wished to limit themselves to what was strictly necessary. For these reasons, the Court found no violation of the right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Court found that the confiscation of the book did not violate the right to freedom of expression, the judgment read as a whole sets a strong general standard for the protection of the right to freedom of expression. In particular, the following dictum has become a cornerstone of freedom of expression jurisprudence: “Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man … [It] is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.
The Handyside judgment has been cited by courts around the world as persuasive authority in freedom of expression cases.
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