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FREE SPEECH IN PUBLIC PLACES: THE PRIVATISATION OF HUMAN RIGHTS IN APPLEBY v UK

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Abstract:

APPLEBY v UK concerns the exercise of Article 10 (freedom of expression) rights on property which, albeit privately owned, is traditionally public in character, in this case a town centre which had been sold to a private management company as a part of a state redevelopment plan. This comment explores the degree to which the state retains the duty to protect freedom of expression in such circumstances. It is argued that the failure of the European Court of Human Rights to protect such freedoms in the present case demonstrates the degree to which the continuing reliance on the conceptually incoherent distinction between “positive” and “negative” state duties has confused the jurisprudence of the court as to the structure of state duties required to control human rights violations by non-state actors. This confusion was aggravated in the present case by counsel for applicant's reliance on a series of American cases which improperly elide the distinction between public “interests” and “functions”. This in turn points to the urgency with which a clear definition of “public function” is required for the correct enforcement of human rights in both the European and UK legal contexts.

Keywords: APPLEBY v UK; Article 10; Free speech; Human Rights; Privatisation of Human Rights; Property Law; Public Function

Document Type: Research Article

Publication date: January 1, 2004

More about this publication?
  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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