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LAW1081 The Individual and the State Formative Assignment Sample

John is a playwright and political activist living in the state of Triland, a state party to the European Convention on Human Rights. Terence is the director of a local theatre club in Triland’s capital city, Stereopolis, and has asked John to write a play about contemporary life and society in Triland. John’s script portrays various national politicians and religious figures as lascivious, immoral, and corrupt. The play includes a very lurid satirical depiction of Mathilda, the mayor of Stereopolis. Mathilda, who is a deeply religious, married mother of four, is portrayed in the play as an adulterer who regularly receives sexual favours in return for preferential treatment in tenders for local contracts.

After several months of rehearsal in Terence’s home, the theatre club is ready to put the play on for the public. They hire a large room in the local town hall and invite their friends and family to watch a private preview of the play, as well as Tina, who is a journalist for the newspaper ‘The Triland Daily’ and a few local dignitaries, including the mayor of Stereopolis and her family. Terence has already sold a number of tickets for the play, which is due to be performed to the paying public two weeks after the preview has taken place.

Mathilda is deeply offended by the play. She complains to the Triland Police Force and John and Terence are arrested under the Triland Police Force’s common law powers of arrest. They are subsequently prosecuted under the ‘Protection of the People from Public Immorality Act’ for the offence of ‘offending public morality’ and they are both sentenced to a 500 Trilandese dollar fine and a 6-month suspended prison sentence for this offence. Mathilda also informs Terence that the play is cancelled and that the Triland Police Force will break up any gathering at which the play is to be performed to the public.

Tina publishes an article about the play, including the controversy surrounding its cancellation by the Mayor of Stereopolis, in the ‘Arts and Society’ inside pages of the Triland Daily. The article contains a detailed account of the dispute, alongside photos of the actors dressed in costume and a reproduction of the most offensive quotations, including those that concern Mathilda. Mathilda sues John and Tina in defamation and succeeds before domestic courts, obtaining sizeable compensation for injury to her feelings and reputation and an injunction against the further publication of the offensive material. Please advise John, Terence, and Tina on the likelihood of making a successful application to the European Court of Human Rights under Article 10 ECHR. Please assume that all the applicants have exhausted domestic remedies and that their claims are admissible.


In the present case scenario for assignment help , it has been noticed that, Mathilda has been significantly offended because of the play and therefore she sued John and Teena in defamation and obtains success prior to domestic court, availing significant amount of compensation in relation to the damages to her feelings and reputation. Further, she also availed injunction order in contrary to the further publication of the violent material. Therefore, in the prevailing case scenario, it is required to provide advice to John, Terence, and Tina on the probability of filing application in successful manner as per Article 10 of ECHR (European Court of Human rights).

The European Court of Human Rights has taken into account the freedom of expression and right of information, which is part of Article 10 of European Convention of Human Rights, a significant basis for advancement of democratic community and every individual. The European Court of Human Rights is applicable on wider definition of the idea of ‘information’ specifically that could play vital role in advancement of democratic community .

European Court of Human Rights Rules as per Article 10 is considered as primary aspect of the Convention. It explains about the right to freedom of expression, however it could be observed from Para two, it is not regarded as absolute right. As per explanation in the cited Article –

1. Every person possesses the right of freedom of expression. This right should consists of freedom to embrace opinions and to obtain and communicate information and plans without any interfere by the public authorities and notwithstanding of frontier. The Article must not restrict States from needing the license for broadcast, cinema enterprises, and TV.

2. The application of such freedoms, as it runs with rights and duties, might be dependent on conditions, rules, limitations or drawbacks as are explained under laws and regulations and are essentially in a democratic community, in the advantage of safety of nation, territorial disorder or offence, for the security of ethics or health, for the safeguarding of rights or image of others, for security of the information obtained in confidential manner, or for keeping the authority and fairness of judiciary .

The range of application of above Article 10 has been taken into account by European Court of Human Rights in the latest case of Zarubin and Others v. Lithuania. In the cited case, expulsion of Lithuania and restriction on re-entry of Russian Journalist in order to engage in work of broadcasting in state-owned Rossia-24 subsequent to their activities at meeting in Vilnius. In this, it has been decided by European Court through majority that applications were not admissible. It was the ultimate decision. The court was ready to admit the measures implemented alongside candidates has considered as an intervention with the right of expression as given in Article 10. Although, further it has been held and reflected by authorities that measures taken by court had been essential in the benefit of security of country and has been equivalent . Specifically, the behavior of applicant at the meeting, demonstrated by authorities as stimulating and hostile, has not been as per the tenets of dutiable journalist.

On the basis of above aspects, it can be said that, freedom of rights of expression has been given in the Article 10 of European Court of Human Rights, but it was subject to several exceptions that should be construed in narrow way. In some case, rights under ECHR also compete with each other in a provided case. For instance, it could occur with Article 10 and Article 8. As per Article 8 of ECHR, every person possesses rights with respect to their privacy and family life, their home, and their correspondence. In a condition in which balancing exercise is considered between Article 10 and Article 8, significant emphasis is applied by the court in relation to the proportional position of the particular rights being requested in the case. Reasoning for intervention with or restriction on every right should be considered. There should be application of equivalent principle as applied in the legal case of Zarubin and Others v. Lithuania.
Elements and benchmark of the reasoning of court particular to defamation case (Safeguarding of reputation)

In establishment of factors of defamation, it is required by court that there must be objective connection between the impugned statement and the individual suing in defamation. In the legal case of Reznik v Russia judgment, it was held by the court that only subjective opinion of the publication as defamatory is not considered as sufficient element for establishment of the aspect that individual directly or indirectly affected through the publication . Further, it is considered by court that protection of reputation must be restricted to that of living individual and not to be based upon the reputations or image of deceased person except in some particular conditions. Further, the main factor of defamation is the harm on reputation. For Article 8 to come into play, harm on image of person should capture particular extent of significance and in a way assisting unfair to the personal satisfaction of the right to respect for personal life . In the legal case, Karako v Hungary, the extent of seriousness of the intervention needed for Article 8 of the ECHR to be implemented in the context of safeguarding of reputation is explained as such a significant intervention in the personal life that personal integrity of person is compromised . It has been noticed that, in the several cases in relation to defamation, it has been found by court in explicit manner or implicit manner, that the extent of seriousness has been grabbed and there would be application of Article 8 that reflects about right to privacy of person. In the legal case of Fuchsmann v Germany, decision related to claim of defamation brought by the applicant for offensive comments against him on internet portal, court held that article 8 was applicable .

In some cases, small group of individuals like board of directors of the company could also take defamation actions in which the target is the group, where the members could be identified as a reasonable person. This condition was occur in the legal case of Ruokanen and Others v Finland, which is related with allegation of rape in the course of party for team of basketball players .

It can be said that, court understands right of protection of every person with respect to their image, focusing that image of individual consists of one of the main element of their personality. The reason behind the same is that, it shows unique elements of person and differentiates the individual from their partners. Therefore, the right to protect image of person is one of the main element of personal advancement and primarily assumes the right to control of individual with respect to use their image, consisting of right to refuse publication thereof . The right with respect to private life, consisting the right to secure reputation as an important aspect of private life. It has been held by the court that reputation of person is supposed to be an independent right usually when realistic assertions were significantly in violent nature that their publication would create unavoidable impact on the life of plaintiff.

By going through the given case scenario, it has been observed that, John is required to write play with respect to contemporary life and community in Triland. Script written by John reflects several local politicians and religious pictures as non-ethical, lascivious, and dishonest. This play also includes significant lurid satirical portray of Mathilda, who was mayor of city. She has been noticed that, Mathilda was very religious, and had four children, is depicted as an adulterer who continuously obtains sexual favors in profit for favorable treatment in tenders for national contract. This depiction actually defames reputation of Mathilda. Although, as per Article of 10 of European Convention of Human Rights, individuals possess right to freedom of expression, and according to this, any person can express their opinions and expressions in free manner, but it is not considered as absolute right and subject to some terms and conditions only. Since, as per Article 8, it has been seen that, person has right to respect privacy, and defamation is considered as main element of personal life. This article contains detailed account of the conflicts, along with the images of actors in costumes and production of major violent lines, consisting of those related to Mathilda. It is considered as attack on reputation of Mathilda, which is considered as central element of defamation and it also includes significant level of seriousness. Therefore, it can be said that, by application of Article 10 with addition to Article 8, John, Terence, and Tina would not probably get success in filing application to the Article 10 of European Convention of Human Rights.


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