Day 312 - 11 Dec 96 - Page 45


     
     1        is what I have been trying to say on this subject
     2        throughout this case.  So if I invite the court to look at
     3        the Telnikov case, and Mr. Rampton, I am sure, is very
     4        familiar with it and what has been disclosed on that
     5        matter.
     6
     7        That deals with that.
     8
     9   MS. STEEL:   Just before I go on to the things about
    10        publication, just about the European law and I have found
    11        the reference for the Sunday Times case, which is Sunday
    12        Times v UK 1979 2 European Human Rights Reports 245.  That
    13        states that "European law starts from the premise that
    14        freedom of expression should be protected and that although
    15        it is not an absolute right the burden of proof is on the
    16        Plaintiff to assert grounds for interference and that
    17        exceptions to the freedom of expression must be strictly
    18        interpreted and convincingly established".  Or for reasons
    19        why it should be restricted.
    20
    21        Effectively, the approach of the European court when
    22        considering the restriction of a recognised civil and
    23        political right is to apply a three-part test as set out in
    24        the European Convention, one that any restriction on a
    25        civil and political right must be prescribed by law; (2)
    26        that the restriction must be justified by one of the aims
    27        under the European Convention; and (3), which is the
    28        important one, the restriction must be shown to be
    29        necessary in a democratic society.  Obviously, for all the
    30        reasons we set out this morning, we do not consider that it
    31        is necessary for McDonald's to be able to sue its critics.
    32
    33        Can I say another note just on this point, just that there
    34        was a case Lingens -- I do not know whether I have
    35        pronounced that right -- L-I-N-G-E-N-S v. Austria [1986] 8
    36        European Human Rights Reports, 407, which held that:
    37         "Requiring a defendant to prove the truth of an allegedly
    38        defamatory opinion infringes his or her rights to impart
    39        ideas as well as the public's right to receive ideas."  It
    40        is reported that: "This judgment was cited and approved by
    41        the court in Oberschlich v. Austria" -- that is
    42        O-B-E-R-S-C-H-L-I-C-K [1991] 19 European Human Rights
    43        Reports, 389.  I have not got copies of all those cases.
    44
    45   MR. JUSTICE BELL:  I can find it.
    46
    47   MS. STEEL:  I have to find the papers to hand up for you.
    48
    49   MR. JUSTICE BELL:  Is that all you wanted to say on this?
    50
    51   MR. MORRIS:  Yes.
    52
    53   MS. STEEL:   Yes.
    54
    55   MR. JUSTICE BELL:  We will have the five minute break before you
    56        go on to publication.
    57
    58                       (Short adjournment)
    59
    60   MS. STEEL:   Before I actually start on the legal submission,

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