Written evidence 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.[90]
(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,[91]
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.[92]
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.[93]
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.[94]
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.[95]
The rights of others include the right to respect for reputation
and private life, as guaranteed by Article 8 ECHR.[96]
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.[97]
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.[98]
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.[99]
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.[100]
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.[101]
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.[102]
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.[103]
(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.[104]
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 emphasise the importance of self-regulation of the newspaper
and broadcast media.[105]
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.[106]
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.
(d) 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.[107]
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".[108]
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.[109]
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,[110]
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.
May 2009
Annex
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)
90 Second Report of 2008-09, The Work of the Committee
in 2007-08, HL Paper 10, HC 92, paragraph 14. Back
91
See for example, Article 19, ICCPR. Back
92
R (Simms) v Secretary of State for the Home Department,
[2000] 2 AC 115 (Lord Steyn). Back
93
See for example, Sunday Times v UK (1970) 2 EHRR 245. Back
94
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. Back
95
See for example, Prager and Oberschlick v Austria (1995)
21 EHRR 1. Back
96
Von Hannover v Germany (2004) 16 BHRC 545. Back
97
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. Back
98
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. Back
99
Tenth Report of 2006-07, The Treatment of Asylum Seekers,
Chapter 7. Back
100
See Annex Back
101
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). Back
102
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". Back
103
MGN v United Kingdom, App No 39401/04. A number of parties
have been granted permission to intervene in this case and their
interventions were submitted in March 2009. Back
104
Chauvy v France App 64915/04, 29 June 2004. Back
105
HC Deb, 2 July 1998, col 541. See also Cols 538-539. Back
106
Cream Holdings v Bannerjee and Others [2004] UKHL 44. Back
107
Lehideux and Isorni v France, (1998) 5 BHRC 540. Back
108
Criminal Libel Act 1819, Section 1. Back
109
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). Back
110
R v Sullivan, R v Pigott (1868) 11 Cox CC 44 at 49. Back
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