Speaking out -- the Human Rights Act, the ways in which the media and freedom of expression will be affected

On 2 October 2000, the Human Rights Act 1998 comes fully into force and the European Convention on Human Rights is incorporated into English law.

Incorporation is likely to have significant impact on all areas of English law and this is particularly so when considering the media, freedom of expression and the nascent right to privacy.From October 2000, litigants in English courts will be able to rely on their 'Convention rights' in domestic courts and tribunals and will not have to travel to Strasbourg to find a judge who will listen to Convention arguments and jurisprudence, and protect Convention rights.Under the Act, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.

Where it is not possible to so construe primary legislation, higher courts may make a 'declaration of incompatibility'.

Such a declaration does not invalidate the legislation or affect the proceedings before the court, but is intended to alert Parliament to the incompatibility and the need for reform.

Furthermore, all domestic courts must take into account Convention jurisprudence; and importantly public authorities must not act contrary to the Convention.Schedule 1 to the Act sets out the articles of the Convention.

Article 8 sets out the right to respect for private and family life.

Article 10 provides for the right to freedom of expression.

The Act therefore incorporates into English domestic law the two potentially competing and conflicting rights to freedom of expression and privacy.The Act and freedom of expressionThe Act contains two provisions specifically relating to freedom of expression: section 12 and article 10.

Section 12 applies if a court is considering 'whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression'.

In such situations, if the person against whom the application for relief is made is neither present nor represented, no such relief is to be granted unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified.Further, 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.Also, the court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; and (b) any relevant privacy code.Article 10Article 10 provides:(1) Everyone has the right to freedom of expression.

This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention or disorder or crime, for the protection of health or morals, for the protection of reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.Under the Act, English courts ar e required to take into account Convention jurisprudence.

It is therefore appropriate to consider the European Court of Human Rights' approach to article 10.The European Court has repeatedly stated the right to freedom of expression occupies a special status under the Convention.

The Court considers that the right to freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of each individual.Article 10 is, subject to 10(2), applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those ideas that offend, shock or disturb the state or any sector of the population.

This means, among other things, that every 'formality', 'condition', 'restriction' or 'penalty' imposed must be proportionate to the legitimate aim pursued.

Because freedom of expression enjoys this special status under the Convention, restrictions are subjected to very close scrutiny.

In the Sunday Times v UK case, the Court held that as a matter of general principle, the 'necessity' for any restriction must be 'convincingly established'.

The Court has also stated that freedom of the press affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of political leaders.

Furthermore, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.Scope of article 10Freedom of expression is a broad concept under article 10.

It encompasses political and commercial speech and artistic expression.

In Muller v Switzerland, a case concerning the exhibition of obscene paintings, the European Court held that article 10 does not distinguish between the various forms of expression.

It is implicit in the fact that article 10 protects free expression that the specific means by which ideas and opinions are expressed are also protected.

Any restriction on the means of expression will imply a restriction of the freedom 'to receive and impart information and ideas'.

Even if the person who provides the means by which the opinion is expressed is not the holder of the opinion, he is protected by article 10.

Hence in the Muller case, the organisers of the exhibition of Mr Muller's paintings were protected by article 10.

Similarly, persons who supply pornographic videos, DVDs or CDs -- even if they took no part in the production of the material -- will be able to rely on their article 10 rights.In considering the freedom 'to receive and impart information and ideas', the content of the expression is largely irrelevant.

Similarly, the fact that the information concerned is of a commercial nature or that the freedom of expression is not exercised in a discussion of matters of public interest is largely irrelevant to the applicability of article 10.

Article 10 therefore encompasses words, pictures, video, cinema, electronic transmission and conduct.Restrictions on freedom of expressionA restriction on freedom of expression will not be compatible with the Convention unless (a) it is 'prescribed by law'; (b) it pursues a legitimate aim; and (c) it is necessary in a democratic society.A restriction will not be prescribed by law unless there is a clear basis for it in domestic law and the applicable rules or regulations are both accessible to those likely to be affected and clear to understand.

A restriction will pursue a legitimate aim only if it is genuinely designed to protect one of the i nterests set out in article 10(2).A restriction is not necessary unless it has been 'convincingly established' by the state that there was both a 'pressing social need' to take some action to restrict freedom of expression and the action take was a proportionate response to that need.

In the case of Sunday Times v UK, the European Court stated that what is at stake is not a 'choice between two conflicting principles' but 'a freedom of expression that is subject to a number of exceptions which must be narrowly construed'.The European Court, and from October 2000 domestic courts, will examine whether the government has advanced relevant and sufficient reasons for the restriction and whether less restrictive measures existed.

Also relevant will be the duration of any restriction on freedom of expression and the public interest for and against the exercise of the right.The media and journalistsThe European Court has recognised the special position occupied by the media in the free flow of information and ideas in a democratic society.

The Court has stated that the press is the 'watchdog' of democracy.Incorporation of article 10 will affect domestic law on, among others, defamation, prior restraint, and disclosure of journalistic sources.DefamationDefamation proceedings inevitably interfere with freedom of expression and so must be justified as necessary and proportionate on a case-by-case basis.The European Court appears to differentiate between private individuals and politicians.

In the case of Lingens v Austria, it stated that 'the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual'.

The European Court also in Lingens held that 'a careful distinction needs to be made between facts and value-judgments.

The essence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof'.In Lingens, the Austrian court conceded that the article did not contain any false statements but found that Mr Lingens could not prove that his opinions were 'true', a necessary step in establishing his innocence of criminal libel.

He was therefore convicted and fined.

The European Court held that his conviction was for expressing his own value judgments on a matter of political controversy.

To ask him to prove the truth of these opinions was impossible to fulfil and infringed the freedom of expression protected by article 10.Protection of the judiciaryAlthough it recognises 'the great importance of not discourage members of the public, for fear of criminal or other sanctions, from voicing their opinions on issues of public concern', the European Court has accepted 'the special role of the judiciary' in a democratic society.

On that basis it has been prepared to extend to judges protection from criticism which would be unacceptable in relation to other public officers, politicians and governments.Prior restraintArticle 10 does not prohibit prior restraint, but the European Court has stated that 'the dangers inherent in prior restraint are such that they call for the most careful scrutiny' (Observer & Guardian v UK ).This is particularly so because the Court accepts that news is a 'perishable commodity' and to delay its publication, even for a short time, may well deprive it of all its value and interest.Prior restraint is of particular relevance in cases concerning the disclosure of confidential information.

In Observer & Guardian v UK, the government had obtained interlocutory injunctions restraining two newspapers from publishing details of t he manuscript of the book Spycatcher containing the memoirs of former MI5 agent Peter Wright.

The European Court held that the injunction had been permissible initially, but could no longer be justified once the book had been published in the US, and could be imported into the UK, because from that time the confidentiality of the material had been destroyed.This approach to injunctions and prior restraint has considerable implications when material can be published all over the world via the Internet.Disclosure of journalistic sourcesThe Convention provides a strong protection of journalistic sources.

In Goodwin v UK, a journalist was fined £5,000 for refusing to disclose the source of his information about a private company's confidential financial report.

The European Court stated: 'Protection of journalistic sources is one of the basic conditions for press freedom.

Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest .

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[An order to disclose] cannot be compatible with article 10 unless it is justified by an overriding requirement in the public interest.' The Court held that the disclosure order was not 'supported by sufficient reasons' because the interest of the company in unmasking a disloyal employee was not necessary and was disproportionate.PrivacyEnglish law does not provide a satisfactory right to privacy.

Various causes of action have been used in an attempt to protect privacy, including malicious falsehood and breach of confidence.

Recently the most powerful assertion of the right to privacy against the unjustified prying of the media has come from the Press Complaints Commission.Article 8, however, expressly provides that everyone has the right to respect for his private and family life, his home and his correspondence.

There is to be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.It should be noted that article 8 refers to interference by a public authority.

The European Court and Commission have, however, imposed an important secondary duty: to take action to ensure that article 8 rights are effectively protected.

The European Court has stated that article 8 'does not merely compel the state to abstain from interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life.

These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves' (X and Y v Netherlands).From this it is possible to argue that the state must protect individuals from invasions of privacy by other individuals and for example newspapers.

This is an area of law which is likely to see dramatic changes following incorporation, as English judges attempt to fashion a right to privacy out of existing causes of action.Access to informationFreedom of expression under article 10(1) specifically includes freedom to receive and impart information and ideas without interference and regardless of frontiers.

This does not, however, confer a right of access to information.

In Gaskin v UK, the applicant attempted to obtain disclosure fr om the local authority of the records relating the time he spent as a child in care with foster parents.

The European Court found that this raised an issue under article 8, not under article 10.

The right to receive information under article 10(1) prohibits restrictions on the receipt of information, but does not oblige public authorities to disclose information against their will.The European Court has, however, made tentative steps towards recognising such a right under article 8 (see Gaskin, Leander v Sweden, Guerra v Italy).ConclusionIncorporation of the European Convention and the jurisprudence of the European Court and Commission into English domestic law is likely to have a profound effect on litigation and the thinking of lawyers and judges.

Whenever the right to freedom of expression is infringed courts must ask whether the infringement (a) pursues a legitimate aim by reference to the aims in article 10(2), (b) is necessary in a democratic society by satisfying a pressing social need.

Further, the courts must be prepared to provide an effective remedy to those whom complain of unjustified invasions of their privacy, whether by public authorities or the media.