Contents: expression 1

EXPRESSION 1

AUSTRALIA 5

DEFAMATION LAW IN AUSTRALIA 5

THEOPHANOUS v THE HERALD AND WEEKLY TIMES LIMITED AND ANOTHER F.C. 94/041 Constitutional Law (Cth) – Defamation (1994) 182 CLR 104 (1994) 124 ALR 1 (1994) Aust Torts Reports 81-297: Freedom to discuss government and political matters; publication without malice; qualified priviledge. 7

FREEDOM OF SPEECH IN AUSTRALIA 19

Overview 19

20

Nationwide News Pty. Limited v. Wills (1992) 177 CLR 1: attack on the integrity and independence of the Australian Industrial Relations Commission 20

Australian Capital Television Pty. Limited and Others v. The Commonwealth (1992) 177 CLR 106: implication of freedom of communication contained in the Constitution extends to all political matters 21

Stephens and Others v. West Australian Newspapers Limited (1994) 182 CLR 211: freedom of communication about political matters implied in the Commonwealth Constitution extends to the public discussion of the performance, conduct and fitness for office of members 22

Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272: Whether implied freedom was not limited to communications for the purposes of the political processes 23

Langer v. The Commonwealth of Australia 96/002 HIGH COURT: If the impairment of the freedom is reasonably capable of being regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose, the law is within parliament’s power 23

MulDowney v. The State of South Australia and Others 93/005: Restrictions imposed on freedom of speech are an incident of that protection. It is reasonably capable of being regarded by Parliament as appropriate and adapted to the achieving of a legitimate legislative purpose of protecting the prescribed primary method. 24

HATE SPEECH AND RACIAL VILIFICATION LAWS IN AUSTRALIA 25

Hate Speech vs. Free Speech 26

Racial Hatred Act 26

State Racial Vilification Laws 28

ZIMBABWE 28

S v Hartmann 1983 ZLR 186 S Crt: lawyers, held a press conference on behalf of their detained clients: convicted of contempt of court: whether there was a real risk as opposed to remote possibility that the publication was calculated to prejudice a fair hearing. 30

In re Munhumeso & Others 1995 (1) SA 551(ZS) at 557C-D 31

Retrofit (PVT) LTD v Posts and Telecommunications Corporation 1996 (1) SA 847: applicant requested the defendant to issue it with a licence for the purpose of establishing a mobile cellular telephone service. The respondent refused to grant the licence on the ground that the service was one over which it enjoyed a monopoly. Act was inconsistent with the right to freedom of expression. 31

NAMIBIA 32

Kausea v Minister of Home Affairs & Others 1995 (1) SA 51: The constitution did not elevate freedom of speech and expression above other fundamental freedoms 33

EUROPEAN COMMUNITY 33

WINGROVE v. THE UNITED KINGDOM (19/1995/525/611) 25 November 1996: Refusal to grant distribution certificate in respect of video work considered blasphemous; Blasphemy by very nature has no precise legal definition - national authorities must be afforded degree of flexibility in assessing whether particular facts fall within definition -- Interference intended to protect against seriously offensive attacks on matters regarded as sacred by Christians 35

DE HAES AND GIJSELS v. BELGIUM (7/1996/626/809) 24 February 1997: judgment against journalists for defamation of magistrats and fairness of the proceedings against the journalists -- Accusations against the judges and Advocate-General amounted to an opinion - comments severely critical but proportionate to the indignation caused by the matters alleged --- Journalists' legitimate concern not to risk compromising their sources of information 43

TELESYSTEM TIROL KABELTELEVISION v. AUSTRIA (21/1996/585/640/824) 9 June 1997: television company unable to broadcast own programmes on account of Austrian Broadcasting Corporation's monopoly 50

OBERSCHLICK v. AUSTRIA (no. 2) (47/1996/666/852) 1 July 1997: Political discussion -- Applicant's article: could be considered polemical, but did not on that account constitute gratuitous personal attack as he had provided an objectively understandable explanation, derived from speech of politician 54

WORM v. AUSTRIA (83/1996/702/894) 29 August 1997: journalist's conviction for publishing an article considered capable of influencing outcome of criminal proceedings -- Applicant's conviction constituted interference with his right to freedom of expression. 58

BOWMAN v. THE UNITED KINGDOM (141/1996/762/959) 19 February 1998: prosecution following distribution of leaflets by abortion campaigner prior to general election -- margin of appreciation in striking balance between rights to free elections and freedom of expression –legitimate aim. 65

SCHÖPFER v. SWITZERLAND (56/1997/840/1046) 20 May 1998: disciplinary penalty imposed on lawyer following criticisms of the judiciary made at a press conference -- proper administration of justice-- balance to be struck between various interests involved, which include public’s right to receive information, requirements of proper administration of justice and dignity of legal profession. 70

ENGLAND 73

Consideration of the Actual Malice Rule in the United Kingdom 73

Par 134, Hill v Church of Scientology 2 SCR 1130 (1995). 74

CANADA 74

Irwin Toy Ltd. v. Quebec (Attorney General) [1989] 1 S.C.R. 92: Commercial advertising directed at persons under thirteen years of age -- protected sphere of conduct -- whether the purpose or effect of the government action in issue was to restrict freedom of expression -- restricting content --government's purpose – direct harmful physical consequences -- meaning of the activity or the purported influence that meaning has on the behaviour of others 75

RWDSU v. DOLPHIN DELIVERY LTD. [1986] 2 S.C.R. 573: Picketing involves some form of expression and enjoys Charter protection unless the action includes violence, threats of violence or other unlawful acts. 76

Rocket v. Royal College of Dental Surgeons of Ontario [1990] 2 S.C.R. 232: Appellants were dentists who participated in an advertising campaign. As a result, they were charged with violating the Health Disciplines Act --- The freedom of expression protected by s. 2(b) of the Charter includes commercial speech such as advertising, even though the Charter was not intended to protect economic interests, because advertising aims to convey a meaning and hence involves more than economics 81

Hill v Church of Scientology 2 SCR 1130 (1995): Barrister held a press conference on the courthouse steps. Unfounded allegations of criminal contempt made against the crown attorney. Whether the common law of defamation is consistent with the Canadian Charter. 83

Dagenais v Canadian Broadcasting Corp. [1994] 3 SCR 835: Challenge of a publication ban --airing of programmes. Common law rule on publication bans conflicted with charter values -- the common law rule must be varied in such a manner as to enable the court to consider both the objective of a publication ban and the proportionality of the ban’s effect on protected charter rights 90

R v Lucas 1998 1 SCR 439: Accused convicted of defamatory libel -- Whether defamatory libel provisions in Criminal Code infringe right to freedom of expression -- If so, whether infringement justifiable 92

Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996] 3 S.C.R. 480: -- Freedom of the press -- Trial judge excluding public and media from courtroom during part of accused's sentencing proceedings -- Whether s. 486(1) of Criminal Code infringes freedoms of expression and of the press -- If so, whether s. 486(1) justifiable in a free and democratic society 96

RJR-MacDonald Inc. v. Canada (Attorney General) [1995] 3 S.C.R. 199: Freedom of expression -- Commercial advertising -- Cigarette advertising banned -- Whether or not legislation validly enacted under criminal law power or under peace, order and good government clause -- If so, whether or not Act's provisions infringing s. 2(b) Charter right to freedom of expression -- If so, whether or not infringements justifiable under s. 1 99

RJR -- MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311: Interlocutory motions to stay implementation of regulations pending final decision on appeals and to delay implementation if appeals dismissed -- Leave to appeal granted shortly after applications to stay heard -- Whether the applications for relief from compliance with regulations should be granted -- Tobacco Products Control Act, 110

Native Women's Assn. of Canada v. Canada [1994] 3 S.C.R. 627: -- Federal government funding four national aboriginal associations alleged to be male-dominated and inviting them to participate in constitutional discussions -- Aboriginal women's association not provided with equal funding and rights of participation to express its views -- Whether aboriginal women's freedom of expression infringed -- Whether federal government obliged under ss. 2(b) and 28 of Canadian Charter of Rights and Freedoms to provide equal funding and participation to aboriginal women's association 114

R. v. S. (T.) [1994] 3 S.C.R. 952: Publication bans -- Young offender charged with sexual offences on two children -- Youth court judge banning publication of evidence and proceedings at young offender's trial until trials of other accused involving same complainants completed -- Whether media can challenge publication ban. 117

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) [1993] 1 S.C.R. 319: --Provincial legislature refusing media access to public gallery to film proceedings with their own cameras -- Whether refusal infringes guarantee of freedom of expression 118

Ramsden v. Peterborough (City) [1993] 2 S.C.R. 1084: Postering -- Municipal by-law banning posters on public property -- Whether postering a form of expression -- If so, whether protected by s. 2(b) -- If infringement of s. 2(b), whether justified under s. 1 124

R. v. Butler [1992] 1 S.C.R. 452: -- Obscenity -- Obscene materials -- Whether definition of obscenity in Criminal Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 126

R. v. Zundel [1992] 2 S.C.R. 731: Spreading false news -- Criminal Code prohibiting wilful publication of false statement or news that person knows is false and that is likely to cause injury or mischief to a public interest (s. 181) -- Whether s. 181 of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether s. 181 justifiable under s. 1 129

Committee for the Commonwealth of Canada v Canada [1991] 1 S.C.R. 139: Airport officials forbidding distributing of political pamphlets -- Federal regulations prohibiting advertising or soliciting at airports -- Whether regulations infringe s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 135

Canadian Broadcasting Corp. v. Lessard [1991] 3 S.C.R. 421: -- Search warrants issued for premises of the press -- Seized videotapes already aired -- Affidavit supporting application not indicating other sources of information -- Whether or not search warrant valid -- Whether or not Charter right to freedom of the press infringed 139

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC 139

Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1991] 3 S.C.R. 459: -- Search warrants issued for premises of the press -- Alternative sources of information available -- Affidavit supporting application not indicating other sources of information -- Whether or not search warrant valid -- Whether or not Charter right to freedom of the press infringed 143

Rocket v The Royal College of Dental Surgeons of Ontario [1990] 2 S.C.R. 232: Freedom of expression -- Profession restricting members' advertising -- Whether or not restrictions an infringement of freedom of expression -- If so, whether or not restrictions justified 146

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO 146

Moysa v The Labour Relations Board of Alberta [1989] 1 S.C.R. 1572: Evidence -- Privilege -- Press -- Journalist refusing to testify at a labour relations board hearing -- Journalist claiming privilege against the disclosure of communications from sources -- Whether journalist has a privilege at common law or under the Canadian Charter to refuse to answer questions involving her sources 148

Hate Propaganda cases 149

R. v. Andrews [1990] 3 S.C.R. 870: Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 149

Canada (Human Rights Comm.) v. Taylor (1990), 13 C.H.R.R. D/435 (S.C.C.) [Eng./Fr. 53 pp.] Communication of Hate Messages by Telephone Prohibited -- Canadian Human Rights Act, which prohibits the communication of hate messages by telephone, does not violate the Canadian Charter 151

Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 1) (1992), 26 C.H.R.R. D/194 (F.C.T.D.) [Eng./Fr. 26 pp.]: Injunction issued to stop telephonic messages -- -- exposure to hatred on the basis of race or religion 155

Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 2) (1996), 26 C.H.R.R. D/242 (F.C.A.) [Eng./Fr. 18 pp.] Authority to Issue Injunction

Before Tribunal Ruling -- exposure to hatred on the basis of race or religion -- survey of the law 157

Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 3) (1996), 26 C.H.R.R. D/260 (F.C.A.) [Eng./Fr. 11 pp.] Contempt order upheld despite lack of authority to issue injunction before tribunal ruling 158

McAleer v. Canada (Human Rights Comm.) (1996), 26 C.H.R.R. D/280 (F.C.T.D.) [Eng./Fr. 15 pp.]: exposure to hatred on the basis of sexual orientation -- Tribunal decision upheld in hate messages case 160

Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.) [Eng./Fr. 38 pp.] Supreme Court of Canada upholds the decision of a Board of Inquiry which ruled that a Board of School Trustees discriminated with respect to a public service because it failed to take appropriate action against a teacher who made repeated public attacks on Jewish people. 161

United States 165

The New York Times v. Sullivan "Actual Malice" Rule 165

(d)Critiques of the "Actual Malice" Rule 166