The European Convention on Human Rights has already had a significant effect on the media, and many media cases have been taken to Strasbourg. Convention rights have also been cited in our domestic courts, and some judges have striven to interpret English law in accordance with them. And from 2 October, convention rights will, for the first time, be directly enforceable in the UK under the Human Rights Act (HRA).
Protection of freedom
Article 10, freedom of expression, is the most important media convention right. Restrictions on the right are in Article 10(2), but these have always been interpreted narrowly in Strasbourg jurisprudence. The courts will have to balance the right to free expression with the restrictions, and with rights such as the right to a fair trial, to a private life and to freedom of thought and religion. Restrictions must:
Be prescribed by law, ie be clear, certain and predictable. Ambiguous or imprecise restrictions of expression may be struck down.
Be necessary in a democratic society. There must be a “pressing social need” for restriction and necessity must be “convincingly established”. “Necessary” means more than “useful”, “reasonable” or “desirable”.
Pursue a legitimate aim. The aim of the restriction must genuinely be to protect one of the interests listed in Article 10(2), and the restriction must be exercised in a way that is proportionate to its legitimate aim.
Is the right to freedom of expression just about news?
Expression may be protected by Article 10, regardless of the medium of transmission or the merit of content. The European Court of Human Rights (ECHR) has held that Article 10 is applicable “not only to information or ideas that are favourably received or regarded as inoffensive… but also to those that offend, shock or disturb… any sector of the population”. Article 10 can thus be used to protect images, music, artwork, websites and live performances, even if the expression is offensive to most people.
Article 10 can be applied to commercial expression, such as advertising and marketing. The codes of practice and complaints processes of advertising regulators are likely to be subject to the act, although commercial speech may be subject to greater restriction than political speech.
Can Article 10 be used to defend against interim injunctions?
It does not prohibit interim injunctions, but the ECHR recognises the effect prior restraint can have: “News is a perishable commodity, and to delay its publication, even for a short time, may well deprive it of all value and interest.”
Section 12 of the HRA protects the media by limiting the scope for pre-trial injunctions and providing for ex parte relief only in exceptional circumstances. Courts have always been reluctant to grant interim relief to claimants in libel cases, balancing free speech with heavy damages if an article was later proved to be defamatory. However, Section 12 enhances the rights of journalists who were previously gagged by interim injunctions in breach of confidence and copyright cases.
David and Victoria Beckham recently sought to prevent publication of parts of an unauthorised biography. The Beckhams argued that information had been provided by their former bodyguard in breach of confidence. The matter was settled on the basis that only about 200 words were removed. It appears that the couple were persuaded that some information about their private lives would be published, and that the courts would intervene only if there was a compelling reason to prevent free speech.
Will Article 10 change the law of defamation?
Restrictions on freedom of expression are permitted to protect reputations, but as the courts will need to interpret restrictions narrowly, defamation defences may have to be expanded.
Domestic courts are slowly allowing more freedom in political speech. The Appeal Court held that a local authority cannot sue for libel, and the House of Lords has cited convention cases where the limits of acceptable criticism against politicians were wider than against private individuals. The courts have stopped short of developing a new category of privilege for political expression. The HRA will give the courts a renewed opportunity to consider this, but they may not take up this opportunity for a few years.
Freedom of expression on the internet has been restricted by Godfrey v Demon Internet : UK internet service providers are removing material from websites because of accusations of defamation, infringement of copyright or other rights. The decision is set to be challenged in the ECHR and, once the HRA is in force, may also be attacked in the UK.
Will convention rights protect journalists' sources?
The ECHR has held that: “Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, and the potential chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest.”
In John v Express Newspapers , the court had to decide whether to order a journalist to break her professional obligation to protect a source of information. The judgment was that the journalist did not have to reveal her source, this being a situation where the claimant had not explored other means of identifying the source. The judgment seems to reflect UK rather than Strasbourg jurisprudence.
How is the right to freedom of expression compatible with a right to privacy?
Restrictions on freedom of expression are permitted if they protect the rights of others. In the UK, pressure to find remedies for infringements of privacy rights has been building up. Media regulators have attempted to find a balance between individuals' and media rights, but they generally operate retrospectively.
Claimants in privacy cases have so far had to rely on actions for trespass or defamation. The Court of Appeal could not provide Gorden Kaye with an injunction in his action against The Sunday Sport, where Kaye was “doorstepped” by a reporter while recovering from brain surgery. Article 8 will, for the first time, give individuals a positive right to respect for their private lives.
It is possible that the courts will apply Article 8 to extreme cases and give victims of infringement of privacy damages and injunctions. Until the extent of such rights is clear, the media should be wary of using names or images of people who have not consented to their use, unless the inclusion is justified. Advertisers should obtain express written consent before using images of the public, and should take special care with consent when using images of children.
Will convention rights interfere with blasphemy laws?
Article 9 provides that everyone has the right to freedom of thought, conscience and religion. Blasphemy laws have been upheld even when they restrict expression, but only where: the restriction applies to the way the expression is conveyed; the expression is highly profane and offensive; and there are safeguards against an over-broad application of restrictions.
A sea change in English law?
The principles of the convention give our courts the tools to radically change all areas of the law affecting the media. Media organisations should familiarise themselves with the approach that the Strasbourg courts have taken to date and prepare to fight for their rights in the UK.
Nity Raj is a solicitor at Richards Butler.