Model Training Materials: Hate Speech, Defamation and National Security European Court of Human Rights has said that prior restraints call for the “most careful scrutiny” 158 and must be governed by a legal framework with “tight control over the scope of bans and effective judicial review to prevent any abuse of power.”159 Furthermore, once information has been public, any additional censorship cannot be justified, as evidenced in the Observer and Guardian case, an important case on prior censorship in the national security context. This also applies to prior restraint in the form of court injunctions against publication. European Court of Human Rights, Observer and Guardian v. The United Kingdom The European Court of Human Rights considered a case where a former member of the intelligence services sought to publish his memoirs. The government sought an injunction to prevent newspapers in the United Kingdom from running serialised excerpts from the memoirs. The Court found that the United Kingdom court injunctions during an initial time period were acceptable, finding it “improbable” that all the contents of the book related to public interest concerns which outweighed the national security interests and noting that the United Kingdom court had weighed the national security concerns against the potential public interest in the information when making its decisions. 160 Furthermore, the injunctions did not impose a “blanket prohibition” and were limited in nature.161 However, subsequent injunctions issued after the book had been published in the United States violated the right to freedom of expression. At that stage, the reasons for the injunction could no longer be to maintain the secrecy of the information, as confidentiality had already been lost. Rather, the purpose of ongoing injunctions was to preserve the reputation of and the public’s confidence in the intelligence services, and to deter others from similarly sharing secret information. These objectives could not justify such a restriction on freedom of expression or on the ability of newspapers to share information on a matter of legitimate public interest.162 Further Reading and Useful Sources Freedom of Expression under International Law Generally Observer and Guardian v. the United Kingdom, 26 November 1991, Application No. 13585/88, para. 60, https://bit.ly/3UDJKoJ. 159 Ekin Association v. France, 17 July 2001, Application No. 39288/98, para. 58, https://bit.ly/3hiJ1u2. 160 Observer and Guardian v. the United Kingdom, note 158, paras. 61-63. 161 Ibid., para. 64. 162 Ibid., paras. 69-70. 158 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 34