Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
to be published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Tim Crook Media Law Bulletin Friday 20th November 2009
Students of media law in Britain, and certainly the country’s professional media communicators, can be forgiven for thinking that there is a bewildering state of confusion in the situation of the country's media law rights.
It would be fair to say uncertainty, insecurity and constant change on a week by week basis seems to be a fair description of the state of affairs.
What are the problems?
1. US publishers are now so fearful of being sued under the terms of English and Welsh libel law that they are beginning to pull out of publication in the United Kingdom whether by old or new media. To prove the point, if you are in the UK, do a google search for the National Enquirer. Then try and visit the site. Yes, you’ve guessed right. You have been blocked. The National Enquirer were sued for a libel by a US public figure in the London libel court and lost, when they believed a similar action would not have been successful in the US courts. Other US publishers are now considering closing down distribution in the UK, unless England’s libel laws are reformed.
2. So do we have a prioritised constitutional right to freedom of expression in the UK? Well we used to, but since the enactment of the 1998 Human Rights Act in October 2000 and the House of Lords rulings in Campbell v MGN and Re S (A Child) (Identification: Restriction on publication) in 2004, the situation has changed. The HRA is a bundle of contradictions. On the one hand it has told the courts to show a particular regard to freedom of expression. (Section 12.4) One would have thought that would give the Article 10 freedom of expression right statutory and constitutional priority- something that would be recognised in ECHR jurisprudence as the British margin of appreciation. But on the other hand sections 2 and 6 have instructed the courts to give effect to convention rights and ‘take into account’ Strasbourg case law.
3. Taking into account ECHR jurisprudence is not as simple as it might seem. The case law informs the British courts that neither Article 10 freedom of expression nor Article 8 Privacy has precedence over the other. That means neither has the trump card. And then to makes things even more complicated ECHR case law (Radio France v France 2004, Chauvy v France 2004, inform the British courts that the right to reputation (libel) is part of the Right to Privacy. That means that when in the past freedom of expression was given priority in applications for prior restraint injunctions over libel disputes (Bonnard v Perryman 1891) that can no longer be the case. The Bonnard v Perryman rule also came under threat by Section 12(3) of the HRA: ‘No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.’
4. Taking into account ECHR jurisprudence and convention rights means that the British courts have to recognise a right to respect for privacy and provide a remedy to civil litigants, and when deciding the cases, have to do a balancing exercise between Article 10 freedom of expression and Article 8 privacy through an intense focus on the evidence every time. This means something new in the UK- a right to respect for privacy in terms of integrity, identity, dignity and reputation as well as the text of the Article: ‘right to respect for private and family life, home, and correspondence.’ ECHR case law discourses on privacy rights in terms of ‘personal identity’ and ‘psychological integrity.’ These are complicated and new concepts in British media law and there are few if any past common law precedents to engage. The jurisprudence is arising out of civil law jurisdictions in Europe and beyond, in countries that until recently were in the Soviet Union’s Iron Curtain, were occupied during the Second World War and have a recent history (last century) of authoritarian government and totalitarianism.
5. The ECHR case law is as changing and confusing as British case law. For example this year in Karako v Hungary, the ECHR suggested something that seemed fairly obvious to English common law lawyers. This is that ‘right to reputation’ is clearly subordinate to the standing right of freedom of expression in Article 10, because it is placed in the qualifying section Article 10.2, and that ‘right to reputation’ is not even mentioned anywhere in Article 8 (privacy). So how can right to reputation be part of the equally standing right of privacy? Karako did not go as far as challenging the idea that right to respect for privacy is not available to citizens against media publishers (citizens)- the horizontal vector. Because that is what Article 8.2 actually states. The remedy was supposed to be only available against public bodies i.e. the state and government to protect citizens from ‘Big Brother’ style encroachment on the privacy of individual citizens. That’s what Article 8.2 clearly states: ‘There shall be no interference by a public authority with the exercise of this right.’
6. Aha! ECHR case law over the last 30 or so years has decreed that it is the duty of the judiciary as a public authority to interfere for ‘the protection of the rights and freedoms of others.’ Now that is clever. So a vertical remedy (citizen to public authority) becomes a horizontal remedy (citizen to citizen (media publisher). The unravelling of this massaging of the original convention drafting would require legislative amendment because the HRA states under Section 6(3) a court or tribunal is a public authority and under Section 6(1): ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’
7. But if English common law media lawyers are hoping that Karako v Hungary is puncturing and undermining the ECHR case law that right to reputation is right to privacy, they may need to be cautious. This is because Judge Jociene delivered a ‘partly concurring opinion’ challenging the legal approach of the majority opinion and restoring the ECHR principle: ‘I think that protection of reputation, as an aspect, indistinguishable from a person's privacy (personal integrity) should be concentrated under and protected by Article 8 of the Convention. Paragraph 2 of Article 10 should be applicable only in cases where the balancing test must be carried out in order to establish the necessity and proportionality of an interference with freedom of expression.’ Judge Jociene seems to have a heap of ECHR case law on his side, which the majority opinion did not fully address including the case Petrina v Romania in October 2008 (only available in French) The majority opinion in Karako said right to reputation was not the same as right to integrity. But they did not address whether it could be seen as the same as right to identity, which in the past has been seen as part of the Article 8 standing right to privacy.
8. So as the book is about to be published so many things are ‘up in the air’. Media organisations, through the skilled advocacy of Geoffrey Robertson QC, have challenged anonymity for terrorist suspects in a Supreme Court case to be ruled on shortly. The balancing exercise set out in Re S (A Child) (Identification: Restriction on publication) in 2004 is being challenged as inappropriate in open justice disputes engaging right to reputation rather than right to privacy and the approach to right to reputation as being subordinate to the standing freedom of expression indicated in Karako v Hungary 2009 has been preyed in aid.
9. What else could the British media do to restore the status quo before 1998 HRA, Campbell v MGN and all the other cases- in other words retrieve the constitutional priority to freedom of expression and freedom of the media? I humbly apologize if our talented profession of media lawyers have already thought of these arguments. I should really get out to court more. But here are some ideas.
a) It seems to me that all of the ECHR case law arguing that right to reputation is a right to privacy concerns non-UK cases of criminal defamation. Defamation in the UK is civil and this year the Westminster Parliament abolished the criminal libel law that had become socially and jurisprudentially redundant. The United Kingdom has therefore decided as a democratic state that damaging reputation should NOT be a criminal offence. This must surely be a margin of appreciation that disables the relevance and ‘taking into account’ of ECHR jurisprudence that engages criminal defamation issues from continental civil law jurisdictions.
b) Any change of the constitutional priority for freedom of expression vis-à-vis right to reputation was and is a matter for parliament, not the courts. If Parliament had intended to do this in the HRA there would have been clear statutory construction in the legislation.
c) Any consideration of Hansard demonstrates that the intentional construction of Section 12(4) was that freedom of expression should be prioritised over right to respect for privacy because the statute says the courts should have ‘particular regard to freedom of expression.’ The words would not have been included unless it was Parliament’s intention to emphasise freedom of expression. This decision by the Westminster Parliament, under the terms of the convention as a treaty is a clear and distinct margin of appreciation that should be reserved as the necessity in the UK’s democratic society and a pressing social need. British history can reserve a margin of appreciation here on the basis of the tradition of an irreverent popular media whose freedom is measured by its right to publish irresponsibly.
d) The margin of appreciation can be buttressed further by the historical fact that since Bonnard v Perryman in 1891 it has been clear that prioritised freedom of expression over right to reputation and privacy has been a pressing social need and necessity for the UK’s democratic society. This is why it has always been accepted that where a publisher intends to defend a libel there could be no prior restraint. It should follow that the rule applies in any consideration of prior restraint in respect of the new right to respect for privacy. British freedom of expression was constituted on the prioritising of the right to publish truth. In defamation, damages would follow when a full trial established falsity. Similarly in privacy, damages should follow only when a full trial establishes there has been the publication of truthful information, which it is in the public interest to remain private.
e) Even after Campbell v MGN and Re S in 2004 the Court of Appeal in the same year sustained the Bonnard v Perryman doctrine in the case of Greene v Associated Newspapers 2004. Lord Justice Brooke said: ‘"The damage that may on occasion be done by refusing an injunction where a less strict rule would facilitate its grant pales into insignificance compared with the damage which would be done to freedom of expression and the freedom of the press if the rule in Bonnard v. Perryman was relaxed."
f) In conclusion and in consideration of Lord Steyn’s speech in Re S, Lord Justice Brooke said: ‘On the facts of that case Lord Steyn said, in effect, that the Article 8 rights of the younger child paled into insignificance when compared with the importance to be attached to the freedom of the press to report a criminal trial. Similarly, the relevant Article 8 rights of the claimant in the present case cannot be accorded great weight (before the trial of this action takes place) when compared with the importance to be attached to the freedom of the press to report matters of public interest, for the reasons already set out in this judgment. Once again we need to stress the distinction between a defamation case (where the claimant's right to a reputation has been put in issue and the issue cannot be effectively resolved before the trial) and a case which raises direct issues of privacy or confidentiality.’ The English legal tradition of denying prior restraint in libel cases can only operate on the basis that libel is not privacy. Lord Justice Brooke’s warnings need to be honoured. Lord Justice Brooke said the Bonnard v Perryman doctrine could not apply to privacy and confidentiality. I would argue that it was Parliament’s intention in Section 12(4) that it should- despite 12(3). This is because any ultimate balancing exercise in applications for prior restraint on truthful publication is by its very nature the destruction of freedom of expression. This process can only be jurisprudentially legitimate in a full trial post publication. Otherwise freedom of expression will have to be policed by a super-injunction culture that is incompatible with a democratic society. Such a catastrophic transformation of one of the highest constitutional principles of Britain’s democracy requires an explicit and positive assertion in statute law. No such declaration exists.
g) The British media have a significant margin of opportunity and initiative in Section 12(4) of the HRA. There is no law or anything else that can stop the Press Complaints Commission from defining the public interest and the right to respect for privacy. Public interest, for example, can be defined as requiring the recognition for an interest that is different in the context of popular tabloid media compared to former broadsheet media. In a recession with declining advertising revenue and circulation the media diversity/plurality argument in the market place can be stated clearly as part of the public interest. The media can wrestle control of any hierarchy of public interest from the courts. For example the PCC code could state there can be no hierarchy and that public interest is determined by the interest of readers in the circumstances of time and context.
h) Where the courts have endeavoured to define what is not in the public interest, the PCC could state categorically that it is in the public interest e.g. there is public interest when public or private figures engage the services of the sex industry, express personal indulgence in terms of wealth and power, and that private figures have a public interest in the authorship of their experience in private and public interaction with public figures. [preserving the ‘kiss and tell tradition’ of popular journalism]
i) The PCC could state categorically that infidelity and issues of private and public morality are in the public interest in the ongoing debate of social values and the ethics of social behaviour and that this is necessary in a democratic society.
j) The PCC could state categorically that there is public interest freedom of expression in the photographic, moving and still, representation of public figures in public spaces and this includes being viewed in private locations from public spaces without the aid of telephoto lens technology. What this means is that where any member of the public can view from a public space the behaviour of a person or persons in private space media photography is permissible.
k) These somewhat controversial suggestions would have the effect of having to be engaged by the courts since there is a statutory obligation under Section 12 (4) (b) to consult ‘any relevant privacy code.’
10. In Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs 2009 the English High Court is questioning the government’s assertion of national security over freedom of expression in the release of redacted paragraphs that are critical to explaining the court’s decision in an action alleging security service knowledge about the rendition and torture of a British resident. Lord Justice Thomas and Mr Justice Lloyd Jones are now adamant that the paragraphs the Foreign Secretary wishes to be redacted would not breach national security if published and by November 19th the case had reached its sixth judgment.
11. In another case of ‘alphabet soup’ anonymous parties (A v B) at the Supreme Court, a former MI5 agent wants to publish his memoirs, but does not want to be identified in any media reports. So the paradox is that he is fighting for his own freedom of expression at the Supreme Court and at the same time trying to block the exercise of freedom of expression by media publishers who wish to identify him.
Now for some good news. Heroic efforts are being made to help journalists and the public to navigate these choppy waters. If you want to understand all of the reporting restrictions that apply in English magistrates and crown courts, the Judicial Studies Board and Society of Editors have jointly published a new court reporting guide. It is brilliantly written and enthusiastically supported by the Lord Chief Justice Igor Judge who has also made a positive speech about the value of reporting the courts and the need to deal with the issue of libel tourism.
The House of Commons Select Committee on culture, media and sport has been heroically investigating press standards, libel and privacy and will shortly report after hearing evidence for more than a year.
If you want to stay in touch with the rapidly changing and confusing seas of British media law I would recommend a subscription to the Press Association’s Media Lawyer ably and heroically edited by Mike Dodd.
And then there are the heroic reporter journalists, editors, and media lawyers in all the cities and towns of Britain heroically doing their best to keep the lights on of media scrutiny in the nation’s courtrooms and fight for the all important right to freedom of expression.
Joshua Rozenberg blog - Leading and respected UK Legal Affairs journalist.
Roy Greenslade blog - Professor of Journalism at City University and influential commentator on Media ethics, law and politics.
Jon Slattery blog - Veteran and much respected journalist on UK media and columnist on journalism culture.
UK Supreme Court blog From Matrix Chambers - specialist and highly authoritative coverage of the new UK Supreme Court.
US Supreme Court blog - Longstanding and much respected coverage on the US Supreme court.
Heather Brooke - Award winning campaigning journalist and Freedom of
Paul Lashmar - Respected investigative journalist and lecturer at Brunel
Tim Crook Media Law Bulletin December 2009