The Case of Al Jazeera Journalists
Closed Expands Expression
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The European Court of Human Rights held that an injunction restraining the Sunday Times from publishing an article related to a settlement being negotiated out of court violated its freedom of expression. In 1972 the British newspaper the Sunday Times published articles concerning the settlement negotiations for the “thalidomide children,” following pregnant women’s’ use of the drug thalidomide which resulted in severe birth defects. The newspaper had criticized the settlement proposals and subsequently, an injunction was issued based on the claim that future publications would constitute contempt of court. Although the Court found that the interference was proscribed by law and pursued the legitimate aim of safeguarding the impartiality and authority of the judiciary, it was not necessary in a democratic society. The Court observed that the right to freedom of expression guarantees not only the freedom of the press to inform the public but also the right of the public to be properly informed, and the thalidomide disaster was a matter of undisputed public concern. The court noted that the proposed article was moderate and balanced in its arguments on a topic that had been widely debated in society and therefore the risk of undermining the authority of the judiciary was minimal. The Court concluded that the interference did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the European Convention.
Between 1958 and 1961, thalidomide was prescribed as a sedative for pregnant women. Several women who took the drug during their pregnancy, however, gave birth to children who suffered from deformities. By November 1961, the manufacturers of thalidomide, Distillers Company (Biochemicals) Limited (Distillers), withdrew all drugs containing this ingredient from the British market.
Due to this, the parents of seventy deformed children filed actions against Distillers. The parents held that the company was “negligent in the production, manufacture and marketing of the drugs” that had caused the defects. [para. 9] Several of these cases were settled; however, there were some that did not settle, and throughout 1968, various other actions were filed against Distillers related. By the end of 1971, there were 389 claims that had been filed against the company.
While these actions were being litigated, there were newspaper articles and reports that were being published regarding these actions and the birth defects. In particular, The Sunday Times published an article on September 24, 1972, titled “Our Thalidomide Children: A Cause for National Shame.” The article discussed the settlements and characterized such offers as “grotesquely out of proportion to the injuries suffered.” [para. 11] Furthermore, the article criticized English law regarding the recovery and assessment of damages among other things. In a footnote to this article there was an announcement that a another article would be published in order to uncover in more depth the cause of these birth defects.
In November 17, 1972, the Divisional Court of the Queen’s Bench granted an injunction in order to restrain the publication of the future article and that its publication would constitute contempt of court. The Sunday Times filed a motion for the injunction to be removed but it was unsuccessful. At the same time, several members in Parliament and newspaper articles were debating the same issues that were the subject of the restricted article. Finally in 1976, the injunction was lifted.
The Court first discussed the issue of contempt of law. The applicants argued that the law of contempt of court was so vague and uncertain and the principles enunciated by that decision so novel that the restraint imposed could not be regarded as “prescribed by law”. [para. 46]
The Court observed that the word “law” in the expression “prescribed by law” covers not only statute but also unwritten law. [para 47] The Court held that there are two “requirements that flow from the expression ‘prescribed by law.’” [para. 47] First, “the law must be adequately accessible”; and second, “a norm cannot be regarded as ‘law’.” [para. 47] In this manner, the Court stated that “assumptions and guesses do not suffice,” and rather “the application of legal rules must be given to any  case.” [para. 47] Thus, “the law must be formulated with sufficient precision to enable the citizen to regulate his conduct,” by being able to foresee what is reasonable and what type of consequences an action may cause. [para. 47]
Using this standard, the Court held “that the applicants were able to foresee, to a degree that was reasonable in the circumstances, the consequences of publication of the draft article.” [paras. 51, 52] Therefore, while there was indeed an interference with the applicants’ right to freedom of expression, it was an interference that was prescribed by law within the meaning of Article 10.
Next, the Court analyzed whether the restriction pursued a legitimate aim and was necessary within a democratic society. The Court found that indeed the interference with the applicant’s freedom of expression pursued a legitimate aim because the interference sought to maintain an objective judiciary and the potential recourse that Distillers could find in the courts.
Second, the Court found that such interference did not meet the “necessary within a democratic society” standard because “the inference…did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the Convention.” [para. 67] Therefore, the Court held that there had been a violation of Article 10 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The importance of the social need for the information, depending on the number of people affected, the victims, the public interest in the matter and other factors, could outweigh the interference introduced by the government. The expression in the matter, however, must be carefully expressed in a non-biased method, presenting both sides of the arguments and must be generally effective in conveying the facts and evidence.
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