36
MORICE v. FRANCE JUDGMENT
defence of their client’s interests. Any restriction on their right to express
their views should be exceptional, the test being whether or not the
comments were detachable from the defence of the client. The margin of
freedom of expression for lawyers, which had to remain as broad as that of
journalists, should take account of the constraints faced by them and the
increased media attention, with a press that was increasingly curious and
probing.
D. The Court’s assessment
1. General principles
(a) Freedom of expression
124. The general principles concerning the necessity of an interference
with freedom of expression, reiterated many times by the Court since its
judgment in Handyside v. the United Kingdom (7 December 1976, Series A
no. 24), were summarised in Stoll v. Switzerland ([GC] no. 69698/01, § 101,
ECHR 2007-V) and restated more recently in Animal Defenders
International v. the United Kingdom ([GC], no. 48876/08, § 100, ECHR
2013), as follows.
“(i) Freedom of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress and for each
individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not
only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive
or as a matter of indifference, but also to those that offend, shock or disturb. Such are
the demands of pluralism, tolerance and broadmindedness without which there is no
‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions,
which ... must, however, be construed strictly, and the need for any restrictions must
be established convincingly ...
(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the
existence of a ‘pressing social need’. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes hand in hand with
European supervision, embracing both the legislation and the decisions applying it,
even those given by an independent court. The Court is therefore empowered to give
the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression
as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the
place of the competent national authorities but rather to review under Article 10 the
decisions they delivered pursuant to their power of appreciation. This does not mean
that the supervision is limited to ascertaining whether the respondent State exercised
its discretion reasonably, carefully and in good faith; what the Court has to do is to
look at the interference complained of in the light of the case as a whole and
determine whether it was ‘proportionate to the legitimate aim pursued’ and whether
the reasons adduced by the national authorities to justify it are ‘relevant and
sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities
applied standards which were in conformity with the principles embodied in