The right to freedom of expression is not an absolute right because something that one person says may cause offence to another. Freedom of expression may sometimes have to be curtailed in the interests of society.
Article 10 of the European Convention on Human Rights provides that everyone has the right to freedom of expression. However, it’s expression is “subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
A number of Irish cases have gone to the European Court of Human Rights (ECHR) on the issue of freedom of expression. The 1994 case of Proinsia de Rossa -v- the Sunday Independent concerned a newspaper report by Mr. Eamon Dunphy which implied that Mr. de Rossa was involved in serious paramilitary crime, was anti-Semitic and supported violent communist oppression. The newspaper appealed the award of €300,000 on the basis that it was disproportionate to the injury suffered by de Rossa. The European Court found in favour of de Rossa and distinguished this case from a similar British case Tolstoy Miloslavsky because “a State remains free to choose the measures which it considers best adopted to address domestically the Convention matter at issue”. In other words the Irish courts were entitled to decide upon the size of the award once the trial judge had given reasonable guidelines to the jury. There was held to be no violation of Article 10 of the ECHR.
In another case Maguire -v- Drury (1995) a newspaper wanted to publish an interview with a man whose wife had had an extra marital affair with a Catholic priest. She asked them not to publish it because it would cause harm to her children. Judge O’ Hanlon ruled in favour of the newspaper and said “freedom means the right to publish things which government and judges, however well motivated think should not be published”.
In the case of Cogley -v- Radio Teilifis Eireann in 2005 an experienced case worker was engaged by RTE’s Prime Time programme to take up a job at Leas Cross Nursing Home. He was wearing a concealed camera. The owners of the home claimed that secret filming breached their ECHR right to privacy. The High Court decided that the issues raised by the programme were of significant public interest – particularly the standard of care at the home and whether it was properly regulated. Judge Clarke said that the use of secret filming would give rise to nominal damages and he concluded that the end does not justify the means.