Memorandum submitted by the Joint Committee on Human Rights
Thank you for your letter of 19 March 2009 drawing the attention of the Joint Committee on Human Rights to your current inquiry on press standards, privacy and libel. I apologise that this response comes to you later than your deadline of 4 May 2009.
You asked for our view on the balance that must be struck between Article 8 and Article 10 ECHR, and the application of the Human Rights Act by our courts in cases involving the privacy of the individual and freedom of expression. We note that you plan to consider a number of specific issues, including costs and the comparative experience of other European jurisdictions in the application of the ECHR.
We have never undertaken a specific inquiry on the role of the press and the balance struck between the right to freedom of expression and the right to respect for privacy. This makes it difficult to comment in detail on the broad questions raised by your inquiry. However, we have a few comments on general principles, drawn from our previous work, which we hope that you might find helpful.
We comment on three broad areas: (a) freedom of expression and the role of the press; (b) the balance to be struck between freedom of expression and the right to respect for private life; and (c) the application of Section 12, Human Rights Act 1998. We raise one additional issue for consideration by your inquiry: the criminal offences of seditious libel and criminal defamation.
We note that in a recent evidence session, Mr Paul Dacre gave evidence to your Committee which included reference to his recent speech to the Society of Editors on the development of libel law. We commented briefly on this speech on our Annual Report:
Mr Dacre was wrong on a number of counts. The Human Rights Act - which was, of course, passed by Parliament - incorporated Articles 8 (right to a private life) and 10 (right to freedom of expression) of the European Convention on Human Rights into UK law. Parliament required the judiciary to balance these sometimes conflicting rights in making decisions in libel and privacy cases. Far from creating a privacy law to suit his own "moral sense", Lord Justice Eady was implementing legislation passed by Parliament in deciding cases such as the recent action by Max Mosley against the News of the World. Indeed English courts have long protected confidential information, good reputation and aspects of personal privacy at common law and in equity, quite apart from Article 8 of the European Convention and the Human Rights Act.
(a) Freedom of expression and the role of the press
The right to freedom of expression is a right which is guaranteed not only by a number of international legal standards, but is directly recognised by the common law in England and Wales. The House of Lords considers that the common law provides a similar degree of protection to freedom of expression as guaranteed by the European Convention on Human Rights (ECHR):
The starting point is the right of freedom of expression. In a democracy it is the primary right: without it an effective rule of law is not possible. Nevertheless, freedom of expression is not an absolute right. Sometimes it must yield to other cogent social interests... in the field of freedom of speech there [is] in principle no difference between English law on the subject and art 10 of the convention.
However, both before and after the Human Rights Act 1998 came into force, the European Convention on Human Rights had a clear and positive influence in shaping the common law right to free expression, including the recognition of an important constitutional role for the press. Many early freedom of expression cases were brought to the European Court of Human Rights (ECtHR) by the UK press, which was dissatisfied with the operation of domestic law and helped to shape the fundamental rights guaranteed by the Convention.
The ECtHR recognises the vital importance of the right of freedom of expression and the role of the press in supporting the democratic right of participation. Its case law traditionally places a high value on the operation of an effective and active press. However, this right is not unlimited, but subject to the obligation to act responsibly and with respect for the rights of others. The rights of others include the right to respect for reputation and private life, as guaranteed by Article 8 ECHR. The Court continues to emphasise that the press is a public watchdog on matters of public interest, and that close scrutiny of any interference with the right to freedom of expression on issues of public debate is required. However, in keeping with its approach to the hierarchy of protection offered to different types of speech, in privacy cases the Court has recently clarified that while press activities relating to political or important public debate will be given a significant degree of protection, not all types of press activity are the same. Significantly less weight will be given to the publication of information relating solely to the private lives of public figures and their families where that information is purely for the purposes of gossip or commercial advantage.
We recently summarised our views on the importance of the right to freedom of expression for the press in our inquiry on the treatment of asylum seekers. In that inquiry we also stressed the responsibilities and duties of the press under Article 10(2). In the course of that inquiry we took evidence from the Press Complaints Commission (PCC), editors and others on the appropriate balance to be struck between the rights of asylum seeking individuals to respect for their rights and the importance of press coverage of Government policy on immigration. We said:
The Article 10 ECHR right to freedom of expression carries certain duties and responsibilities, and may be subject to restrictions, including those required for the protection of the reputation or rights of others [...]
We cherish the fundamental right to free speech and the freedom of the press and support self regulation. As the editors who gave evidence to us recognise, the right to free speech and the freedom of the press are not absolute, but must be exercised in accordance with the duties and responsibilities of the media.
In that inquiry, we were not satisfied with the evidence of the PCC that its work was adequate to protect individual asylum seekers and asylum seekers as a group, from reports which were likely to endanger their rights. We were particularly concerned about the potential for inflammatory reporting to incite violence against asylum seekers or those in minority groups believed to be seeking asylum. We recommended that the PCC should adopt more robust guidance in respect of reporting on minority groups. I enclose our recommendations in that inquiry, for information (Annex).
We understand that a significant issue being considered by your Committee is the potential implications of the current operation of Conditional Fee Arrangements (CFA) in libel and privacy cases for freedom of expression.
Although the ECtHR will be slow to interfere with domestic procedural arrangements, it recognises that, in certain cases, the procedural arrangements in respect of libel and other hearings may have a chilling effect of freedom of expression. So, for example, in the McDonalds Libel case, the inability of the low-income defendants to access legal aid when facing a complex claim by a multi-national corporation was not only in breach of the right to a fair hearing, but also the right to free expression (Articles 6 and 10). In order to determine the proportionality of any interference in a particular set of circumstances, the ECtHR will consider the specific facts of the case. Whether the procedural arrangements in place entirely undermine the ability of an individual to raise a legitimate defence; whether an appropriate measure of procedural fairness and equality of arms is provided in the particular case; and whether the measures will have a "chilling" effect on others will all be relevant.
Equally, however, the ECtHR recognises that the right to a fair hearing includes the right of effective access to justice. In some complex cases, the right to representation will be protected by Article 6(1) ECHR. So, without access to legal aid, or any alternative system to allow claimants to access legal advice and representation in complex cases which seek to protect the individual right to respect for private life, access to justice may be inhibited. We note that the ECtHR is currently considering the issue of costs in the Naomi Campbell case and a hearing is expected later this year.
(b) The balance between freedom of expression and privacy
A significant proportion of the evidence presented to your inquiry has concerned the balance being struck by the UK courts in cases involving Articles 8 and 10. In each of these cases, we note that the balance has been considered by our domestic courts - often by the House of Lords - which will have considered whether the balance is appropriately struck after detailed submissions by both sides. Prior to the introduction of the Human Rights Act 1998, most of these cases would have been determined by the European Court of Human Rights in Strasbourg. Now, they are decided, at least in the first instance, by UK courts.
In determining whether the balance in recent cases has been struck appropriately, it is important to remember that the ECtHR will continue to supervise the application of the Convention in the UK. It remains open to any claimant or defendant to challenge the interpretation of the law adopted by the domestic courts at the court in Strasbourg. Should the domestic courts choose to strike a balance which is inconsistent with the requirements of the Convention and departs significantly from the case-law of the European Court of Human Rights, there will be an increased likelihood of judgments against the UK. The parties involved in any dispute may have to meet the additional costs and time involved in an application to Strasbourg to secure an effective remedy.
(c) The operation of the Human Rights Act 1998, including Section 12
The operation of Section 12 of the Human Rights Act 1998 has been addressed at length in the evidence which has been submitted to your inquiry. The principal effect of this provision is to impose a higher test for the purposes of securing an injunction in respect of a publication by the press (that an individual would be "likely" to succeed at trial in preventing the publication) and that the court should have "particular regard to the right of freedom of expression". In considering freedom of expression, domestic courts are directed to have regard to journalistic, literary or artistic material, the public interest in publication and any relevant privacy code. During Committee stage debates on these provisions, the then Home Secretary, Jack Straw MP, explained that the Government's intention in introducing these provisions was to emphasis the importance of self-regulation of the newspaper and broadcast media.
In its submission to your inquiry, the Media Lawyers Association submit that Section 12 has been narrowly interpreted by the UK courts and that this defeats the original intention of Parliament. We make no comment on their submission that courts should be encouraged to pay greater regard to compliance with the PCC Code. However, we note that Section 12 has introduced a higher standard for claimants who seek injunctions. We reiterate our view that if the balance struck by the domestic courts between Article 10 and Article 8 ECHR were to depart significantly from the balance struck by the ECtHR, this would increase the likelihood that significantly greater numbers of cases would go to Strasbourg and increase the risk of breaches of the Convention by the UK. This could undermine the intention of Parliament, in enacting the Human Rights Act 1998, to afford a legitimate, accessible and effective remedy in our domestic courts for breach of individual Convention rights.
Seditious libel and criminal defamation
Criminal sanctions for expression must be subject to extremely close scrutiny and must be accompanied by strong justification in order to protect the right to freedom of expression. It is currently an offence to compose, publish or print anything which tends to "bring into hatred or contempt the person of his Majesty . . . or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or to excite his Majesty's subjects to attempt the alteration of any matter in Church or State as by law established, otherwise than by lawful means". Similarly, it is a common law offence to say or do anything with a seditious tendency, with a seditious intention. Establishing truth is not a defence to either of these offences. Criminal defamation remains a common law offence. Establishing truth is only a partial defence to criminal defamation and a public interest in the statements made must be established.
While no recent prosecutions have been brought for these offences, they are directly targeted at the type of political speech which the European Convention on Human Rights provides the highest degree of protection. We consider that any conviction for seditious libel would be extremely difficult to justify and likely to be in breach of the right to freedom of expression guaranteed by Article 10 ECHR. Equally, although the courts have made clear that these offences cannot be used against free comment, censure or criticism, we consider that the offences are capable of having a chilling effect which could engage Article 10 ECHR.
Amendments have been proposed to the Coroners and Justice Bill by Dr Evan Harris, one of our members, to abolish these offences, but no time has yet been secured for debate on this issue. Your Committee may wish to consider whether the ongoing availability of the offences has any chilling effect on political expression by the press and whether it should be abolished.
We wish your Committee well with the remainder of your deliberations in the inquiry and look forward to reading your Report.
Conclusions and recommendations - Extract from 10th Report by the Joint Committee on Human Rights, Session 2006-07
Treatment by the media
60. We are concerned about the negative impact of hostile reporting and in particular the effects that it can have on individual asylum seekers and the potential it has to influence the decision making of officials and Government policy. We are also concerned about the possibility of a link between hostile reporting by the media and physical attacks on asylum seekers. (Paragraph 349)
61. We therefore recommend that the PCC should reconsider its position with a view to providing practical guidance on how the profession of journalism should comply with its duties and responsibilities in reporting matters of legitimate public interest and concern. We emphasise that such guidance must not unduly restrict freedom of speech or freedom of the press any more than similar guidance does in the USA. (Paragraph 366)
62. We recommend that Ministers recognise their responsibility to use measured language so as not to give ammunition to those who seek to build up resentment against asylum seekers, nor to give the media the excuse to write inflammatory or misleading articles. (Paragraph 367)
63. We were pleased to learn about the positive impact of projects which aim to encourage more considered reporting of asylum seeker issues, and provide a voice for asylum seekers. We are encouraged to hear that newspaper editors would be prepared to publish more such stories, and suggest their willingness to do so should be supported by those working with asylum seekers, submitting positive stories for reporting by them. We support the recent recommendation from the Information Centre about Asylum and Refugees that the Home Office should encourage newspapers to act more responsibly, and we recommend that the Home Office lend its support to the networks and award schemes working in this area. (Paragraph 371)
 Second Report of 2008-09, The Work of the Committee in 2007-08, HL Paper 10, HC 92, paragraph 14.
 See for example, Article 19, ICCPR.
 R (Simms) v Secretary of State for the Home Department,  2 AC 115 (Lord Steyn).
 See for example, Sunday Times v UK (1970) 2 EHRR 245
 See for example, Lingens v Austria (1986) 8 EHRR 407; Bergens Tidende v Norway, App No 26132/95. On the duty to act responsibly, see Bladet Tromso and Stensaas v Norway, (2000) 29 EHRR 125, para 65.
 See for example, Prager and Oberschlick v Austria (1995) 21 EHRR 1
 Von Hannover v Germany (2004) 16 BHRC 545
 See for example, Times Newspapers (Nos 1 and 2) v United Kingdom, App No 3002/03 and 2676/03, Judgment, 10 March 2009, para 40.
 See for example, Societe Prisma Presse v France, App No 71612/01, 1 July 2003. Where the court considered an article in a weekly "gossip" magazine, the publication of details about the alleged marital difficulties of a singer and his wife and concluded that there was a lack of support to be found in Article 10 for publications whose sole aim was to divulge the private lives of public personalities.
 Tenth Report of 2006-07, The Treatment of Asylum Seekers, Chapter 7.
 Steel & Morris v United Kingdom, App No 68416/01, 15 February 2005. On compatibility of procedural arrangements with the right to a fair hearing, see also Tolstoy v United Kingdom (1995) 20 EHRR 445, where the court considered that there was no violation of Article 6, where the applicant had been required to pay £125, 000 in security for costs in relation to an appeal against an award of £1.5 million for libel (despite the conclusion of the court that the sum damages awarded was disproportionate and in breach of Article 10 ECHR).
 Airey v Ireland (1979) 2 EHRR 305, para 26. See also Stewart-Brady v United Kingdom App 277436/95; 90-A DR 45. Although the Commission in this latter case concluded that, in the circumstances, there was no breach of Article 6, since the potential public costs involved were disproportionate to any damages likely to be recovered, it did recognise that the inability of the applicant to secure legal aid created a "potential problem of access to court".
 MGN v United Kingdom, App No 39401/04. A number of parties have been grated permission to intervene in this case and their interventions were submitted in March 2009.
 Chauvy v France App 64915/04, 29 June 2004.
 HC Deb, 2 July 1998, col 541. See also Cols 538 - 539
 Cream Holdings v Bannerjee and Others  UKHL 44
 Lehideux and Isorni v France, (1998) 5 BHRC 540
 Criminal Libel Act 1819, Section 1.
 The Law Commission has recommended the abolition of seditious libel and the repeal of the existing criminal defamation offence in favour of a narrower replacement. See The Law Commission, Treason, Sedition and Allied Offences (Working Paper No.72), paragraphs 78 and 96(6) (1977); The Law Commission, Criminal Law: Report on Criminal Libel (Cm 9618) (1985).
 R v Sullivan, R v Pigott (1868) 11 Cox CC 44 at 49