Category Archives: Art. 10 | Freedom of Expression

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UK Supreme Court judgment summaries on YouTube… now we need the full hearings

Screen Shot 2013-01-21 at 09.43.46The UK Supreme Court has today launched a YouTube channel showing short summaries of judgments. The summaries are read out by justices when a judgment is released. There are already ten online and more will be uploaded each time a judgment is released.

Since its launch in 2009, the UK’s new Supreme Court has been doing rather well at online access to justice. Its website is clear and elegant, it publishes excellent press summaries at the same time as judgments, it was the first supreme court to join Twitter (@uksupremecourt now has over 27,000 followers) and its hearings can be watched live online thanks to a partnership with Sky News.

Judgment summaries are a good start. Without wanting to sound ungrateful, what would really be useful is to be able to access recordings of full hearings on YouTube, as is provided on the superb Brazilian Supremo Tribunal Federal YouTube channel. Continue reading →

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Semi-naked RocknRoll pics can’t be published in Sun, rules High Court

Kate Winslet and Ned RocknrollRocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) – Read judgment

Earlier this month, Rocknroll came to the Chancery Division.  Mr Justice Briggs set out his reasons yesterday for granting Kate Winslet’s new husband an interim injunction prohibiting a national newspaper from printing semi-naked photographs of him taken at a party in July 2010 and later posted on Facebook.

In Edward Rocknroll v. News Group Newspapers Ltd, the Judge decided that the Claimant was likely to succeed at a full trial in establishing that his right to respect for his family life (protected by article 8 of the European Convention on Human Rights) and his copyright over the photographs should prevail over The Sun’s right to freedom of expression (protected by article 10 ECHR).  As such, the photographs cannot be published nor their contents described pending a full trial.

Continue reading →

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Turkish block on Google site breached Article 10 rights, rules Strasbourg

google-sign-9YILDIRIM v. TURKEY – 3111/10 – HEJUD [2012] ECHR 2074 – Read judgment

In the case of Yildrim v Turkey the European Court of Human Rights decided that a Court order blocking access to “Google Sites” in Turkey was a violation of Article 10.  The measure was not “prescribed by law” because it was not reasonably foreseeable or in accordance with the rule of law.  The judgment is available only in French.

He owned and ran a website hosted by the Google Sites service, on which he published his academic work and his opinions on various matters.  On 23 June 2009 the Denizli Criminal Court of First Instance ordered the blocking of an Internet site whose owner had been accused of insulting the memory of Atatürk. The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner.

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Public insults to be legalised but grossly offensive messages still criminal

Twitter-Logo UK human rights blogSection 5 of the Public Order Act 1986, which outlaws the use of “threatening, abusive or insulting words or behaviour” will be amended to remove the word ‘insulting’. The amendment is the result of a successful, high-profile campaign which asked “Do we really need the police and the courts to deal with insults?“

That campaign, supported by major organisations and many MPs, prompted a successful House of Lords vote to amend the wording in December. That vote was supported by the Crown Prosecution Service, with Director Keir Starmer writing that his organisation was “unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as ‘abusive’ as well as ‘insulting“. The Home Secretary has now, rather grudgingly, said she will not oppose amendment.

So, we will be able to insult in public. But thanks to section 127 the Communications Act 2003, it is still up to the police and the courts to decide whether we have sent grossly offensive messages on Facebook, Twitter and in practically any other communications medium. Continue reading →

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EU’s non-disclosure of UK EU Charter “opt-out” documents is a breach of the EU Charter


11374Decision of the European Ombudsman on complaint against the European Commission, 17 December 2012 – Read decision

The UK secured what Tony Blair described as an opt-out in respect of the EU Charter on Fundamental Rights as part of the negotiations leading up to the Lisbon Treaty – which contains the Charter. Rosalind English has summarised here what the Charter involves, and whether the “opt-out” really changes anything. This recent EU Ombudsman’s decision concerns the attempts of an NGO to extract certain EU Commission documents in the run-up to the Lisbon Treaty. The EU Commission was taking its usual head-in-the-sand approach to disclosure (see various posts listed below), hence the complaint to the Ombudsman. And, as we shall see, the Ombudsman gave the Commission both barrels in this highly critical decision.

Continue reading →

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Identity of social workers may be published following fostering bungle

question-mark-face Bristol City Council v C and others [2012] EWHC 3748 (Fam) – read judgment

This was an application for a reporting restriction order arising out of care proceedings conducted before the Bristol Family Proceedings Court. The proceedings themselves were relatively straightforward but, in the course of the hearing, information came to light which gave rise to concerns of an “unusual nature”, which alerted the interest of the press.

Background

After family court proceedings decided that child A was at risk of violence from her father, an interim care order was implemented and A was moved to foster carers. However some time afterwards the local authority received information from the police suggesting that someone living at the address of A’s foster carers had had access to child pornography. A also told social workers that another member of the foster household (also respondent to this action) had grabbed her around the throat. As a consequence police and social services visited the foster carers, informed them of the concerns about pornography, removed all computers from the house and moved A to another foster home. On the following day the male foster carer was found dead, having apparently committed suicide. Continue reading →

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An instance of ‘the finger’ (post)

1245601551255338Schwartz and another v Insogna and another, United States Court of Appeals for the Second Circuit – read judgment

Never doubt the authority of the law, particularly in the US, where a six year battle triggered by a middle finger gesture continues to rage in the New York courts.

In May 2006, Mr. Swartz was a passenger in a car in a rural part of upstate New York when he spotted a police car that was using a radar speed-tracking device. The driver, a Vietnam veteran and retired airline pilot, acted on instinct to show his displeasure: he extended his right arm outside the passenger’s side window, and then further extended his middle finger over the car’s roof. As the New York Times reports

The reaction was swift. The officer followed the car; words were exchanged; backups were called; and Mr. Swartz was arrested on a charge of disorderly conduct.

Mr Schwartz maintained that his gesture was provoked by his anger that the local police were spending their time running a speed trap instead of patrolling and solving crimes. Continue reading →

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High Court refuses to condemn US drone strikes

military-drone-spy-008R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment

In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan.  The Claimant’s father was killed during such an attack in March 2011.

The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law.  The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]

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Extraordinary rendition gets to Strasbourg – a right to the truth

ciaEl-Masri v. The Former Yugoslav Republic Of Macedonia, Grand Chamber of ECtHR, 13 December 2012, read judgment

In a hard-hitting judgment, the 17 judges of the Grand Chamber found Macedonia (FYROM) responsible for the extraordinary rendition of Mr El-Masri, a German national, by the CIA to Afghanistan. We have all seen the films and read about this process – but even so the account given by the Court is breath-taking. And in so doing, most of the members of the Court made explicit reference to the importance of a right to the truth – not simply for El-Masri, the applicant, but for other victims, and members of the public generally. And the story is all the more chilling because the whole episode appears to have been caused by mistaken identity. 

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New prosecution guidance on offensive speech online: sensible, but the law is still out of date

Twitter-Logo UK human rights blogThe Crown Prosecution Service (CPS) has published interim guidance on when to prosecute people for grossly offensive and obscene messages they send on social media. The guidelines are now subject to a full public consultation. Earlier this year, I took part in a series of round table discussions with the DPP over how the guidelines would look.

Section 127 of the Communications Act 2003 prohibits any message sent “by means of a public electronic communications network” which is “grossly offensive or of an indecent, obscene or menacing character“.

The guidelines are sensible, to a point. They will make it less likely in future that people are prosecuted for saying stupid things online. Prosecutors are reminded that many offences will already be covered under other criminal laws such as those dealing with harassment, stalking or other violent threats. Cases which are not covered by those laws, that is the grossly offensive etc messages, are “subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest“. The CPS then seeks to define “grossly” offensive, at least in the negative, as cases which are more than:

  • Offensive, shocking or disturbing; or
  • Satirical, iconoclastic or rude comment; or
  • The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.

Continue reading →

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Permanent injunction against anti-vivisection protestors

harlan-investigationHarlan Laboratories UK L & Another v Stop Huntingdon Animal Cruelty and others [2012] EWHC 3408 (QB) – read judgment

The High Court has granted a medical testing laboratory a final injunction against anti-vivisectioners protesting outside their premises. 

Harlan laboratories breed animals for medical and clinical research purposes. The applicants’ harassment claim included assertions that the respondent anti-vivisection groups had verbally abused those entering and leaving its premises, blocked and surrounded vehicles entering and leaving the premises in a threatening manner and trespassed on Harlan’s property. They had also photographed Harlan’s employees and recorded their vehicle registration details. Interim injunctions had been granted restraining, inter alia, where and how often the respondents could demonstrate outside of Harlan’s premises.

The issues  in this application were whether the applicants were entitled to summary judgment on their harassment claim and whether the court should grant a permanent injunction pursuant to s.3(3) of the 1997 Protection Against Harassment Act. The applicants also applied for a permanent injunction under section 37 of the Senior Courts Act 1981. Continue reading →

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Judge strikes down Facebook page “Keeping our Kids Safe From Predators”

Facebook-from-the-GuardianX v Facebook Ireland Ltd [2012]   NIQB 96 (30 November 2012)   - read judgment

This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the  ”wild west” of the internet and the question of social media regulation.

This short  judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,

The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.

Background to the case

The plaintiff  (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith.  Continue reading →

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Mail finds new love for Human Rights Act

Just fancy that!You know those films where a couple spend the first two acts hating each other until, possibly at night when it is raining, they realise they have been in love all along? It seems that following the Leveson Inquiry report, a winter romance is developing between the Mail on Sunday and the Human Rights Act.

In Bombshell by Leveson’s own adviser: His law to gag press is illegal as it breaches Human Rights Act, the Mail reveals an interview with Shami Chakrabarti, director of human rights advocacy organisation Liberty and also advisor to the Leveson Inquiry, in which she argues that any new law that made the government quango Ofcom the ‘backstop regulator’ with sweeping powers to punish newspapers would violate Article 10 of the European Convention On Human Right, which protects free speech (Update: for more, see this post by Hugh Tomlinson QC – he disagrees with Chakrabarti, although also points out she has been misrepresented).

It only seems like a few months ago (actually, it was only a few months ago) that a Mail editorial thundered: Human rights is a charter for criminals and parasites our anger is no longer enough. As Private Eye might say… just fancy that!

Continue reading →

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The Leveson Report is here!

The Leveson Report into the Culture, Practice and Ethics of the Press has been published. The full report (in four parts) is here. The Executive Summary is here. Thankfully, unlike the artist’s impression which accompanies this post, it is not written in early Hebrew script [Update - this post originally, wrongly, identified the text as Greek. That will teach me for trying to be clever...].

My statement to the Inquiry is here. 1 Crown Office Row barristers represented the Metropolitan Police (Neil Garnham QC and Alasdair Henderson) and the Mayor’s Office for Policing and Crime (MOPC) (Peter Skelton).
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How to keep children anonymous in personal injury cases

MXB v East Sussex Hospital Trust – read judgment

Elizabeth-Anne Gumbel QC of 1 Crown Office Row acted for the claimant in this case. She has nothing to do with the writing of this post.

In personal injury proceedings involving a child it was appropriate to grant an anonymity order  prohibiting her identification since it would defeat the purpose of the proceedings to ensure that she received and kept compensation awarded for her injuries.

Publication of her name was not in the public interest, and the curtailment of her and her family’s right to respect for their private and family life that would occur could not be justified. Continue reading →