HANDYSIDE v UK

General principle:

When restricting individuals’ rights in order to protect public morals, the Convention leaves to the Contracting States a wide margin of appreciation.

Handyside v UK no 5493/72, 07/12/1976, ECHR

Facts:

The Little Red Schoolbook is a book for children which had been published in several European and non-European countries. The book urged young people at whom it was directed to take a liberal attitude in sexual matters. Prosecutions were brought against the applicant for possessing obscene publications, under Obscene Publications Act 1959, as amended by the Obscene Publications Act 1964. He claimed that his prosecution breached his freedom of expression under Article 10 pf the Convention.

Ratio:

The Court found that there has been no violation of Article 10 of the Convention. It noted that “it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them”. On the specific question of obscenity laws, it stated that:

“The Contracting States have each fashioned their approach in the light of the situation obtaining in their respective territories; they have had regard, inter alia, to the different views prevailing there about the demands of the protection of morals in a democratic society”.

Application:

In Handyside v UK, the Strasbourg Court that local authorities are better placed to define public morals, a concept that is country-specific depending on the traditions and culture of each contracting state.

Analysis:

Alternatively ‘British courts now explicitly apply proportionality in respect of directly effective European Community Law and, under the HRA 1998, as a structured test to evaluate compatibility with Convention rights, particularly the qualified rights under Arts 8-11.’ In the case of Handyside v UK which concerned Article 10 Freedom of Expression in which it was stated that any material which “shock, offend, disturb that state or any sector of the population every penalty imposed must be proportionate to the legitimate aim.” This is another avenue which could be pursued by Cinemascape to quash the Secretary of State’s decision directly through Section 7 HRA.