General principle:
The expression "prescribed by law", covering both statutes and unwritten provisions, ensures that a legal provision allowing for an interference on individuals’ rights must be adequately accessible to citizens and formulated with sufficient precision to enable the citizen to regulate his conduct.
Name:
The Sunday Times v The United Kingdom no 6538/74, 26/04/1979, ECHR
Facts:
The applicant, a British newspaper, published an article on titled the Thalidomide, a drug taken by pregnant women allegedly causing birth defects to new-borns, and criticizing English law for failing to tackle this issue. In this article, a footnote announced another article to be published later on the same topic. In November 17, 1972, the Divisional Court of the Queen’s Bench granted an injunction in order to restrain the publication of the future article stating that its publication would constitute contempt of court. The applicant argued that the law of contempt of court was so vague and uncertain that the restrain imposed on their freedom of expression (Article 10 of the Convention), could not be regarded as “prescribed by law”.
Ratio:
The Court developed its jurisprudence on the notion of prescribed by law, stating that: “In the Court’s opinion, the following are two of the requirements that flow from the expression "prescribed by law". Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail” (§49). Applying this test to the present case, it found that the applicants “were able to foresee, to a degree that was reasonable in the circumstances, the consequences of publication of the draft article”. Accordingly, the interference on the applicant’s freedom of expression was prescribed by law as for the purposes of paragraph 2 of Article 10 of the Convention.
Application:
Interestingly, in this case, the Court made it clear that the term “law” referred to both written and unwritten legal provisions: “The Court observes that the word "law" in the expression "prescribed by law" covers not only statute but also unwritten law. Accordingly, the Court does not attach importance here to the fact that contempt of court is a creature of the common law and not of legislation. It would clearly be contrary to the intention of the drafters of the Convention to hold that a restriction imposed by virtue of the common law is not "prescribed by law" on the sole ground that it is not enunciated in legislation: this would deprive a common-law State which is Party to the Convention of the protection of Article 10 (2) (art. 10-2) and strike at the very roots of that State’s legal system” (§47).
However, this does not mean that a legal basis has to be absolutely clear. However, what matters is the possibility for an individual to foresee the legal consequences of an act which is regulated by law (see Hashman and Harrup v. UK, no 25594/94, 25/11/1999, ECHR).
