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,
