Söderman v. Sweden – (application no. 5786/08) - Read judgment
The European Court of Human Rights has decided that it is a violation of the right to privacy if a country does not have a law prohibiting surreptitious photography of people. The ruling has serious implications for paparazzi, and would have been useful to Princess Diana. A ready-made bill exists in the form of a draft published by the Law Commission for England and Wales in 1981.
On 12 November the Grand Chamber of the European Court of Human Rights ruled that Sweden’s lack of a legal ban on invading personal privacy by surreptitious photographs violated the right to privacy. The case involved a camera hidden in the bathroom by the stepfather of a fourteen-year old girl. (Söderman v. Sweden,application no. 5786/08).
R (on the application of London Christian Radio Ltd & Christian Communications Partnerships) v Radio Advertising Clearance Centre (Respondent) & Secretary of State for Culture, Media and Sport (Interested Party)  EWCA Civ 1495 – read judgment
The ban on Christian Radio’s proposed advert seeking data on the “marginalisation of Christians” in the workplace was lawful and did not constitute an interference with free speech, the Court of Appeal has ruled. When determining whether a radio or television advertisement was “political” fur the purposes of Section 321(2)(b) of the Communications Act 2003 the court should consider the text objectively; the motives of the advertiser were irrelevant.
This was an appeal against a ruling by Silber J ( EWHC 1043 (Admin)) that a proposed radio advertisement was directed towards a political end, and therefore fell foul of the prohibition on political advertising which meant that it could not be given clearance for broadcast (see my previous post on this decision). Continue reading
Stefan Rousseau/PA Wire
TV cameras are recording Court of Appeal hearings from today. The BBC, ITN, Sky News and the Press Association are cooperating on the project, and have hired an in-court video-journalist who will recommend the most interesting cases.
This is great news. Let in the light. The more that the public can see what is going on in their courts, the better. The courts are a bewildering place for the uninitiated and especially for those who cannot afford to pay someone to explain what is going on. This is still a relatively small advance – only appeals will be broadcast, not trials, so the public is unlikely to see any cross examination of witnesses. But hopefully it will be enough to increase public understanding of and interest in the courts.
But a word of warning. This initiative will only succeed if it is implemented in the right way. And, there are important lessons here from the Supreme Court’s ongoing broadcasting experiment.
On October 2 at 10am, the United Kingdom Supreme Court held an hour long pre-term press-briefing to mark the opening of the Court’s fifth year. This blog looks not only at what was said by the Court, and asked by the journalists on the day, but also what was then reported.
The Supreme Court’s relationship with the media is marked by the same combination of common interests and tensions which mark the media’s relationship with any other public body. Yes the Court wants media coverage; and a function of the media is to cover the Court. The media though will always want more than its subjects are looking to give up, and not only that, will often frame how the subject is presented according to each outlet’s particular agendas. Further, the Court, and its justices, will also have their own goals about what messages should be highlighted.
12 June 2013 may go down in legal history. For it was the first time a national newspaper’s main headline was about the launch of a legal textbook. In a paradoxical explosion of free publicity for said book, the Daily Express reported that a new online guide to European asylum and immigration has caused “outrage” for helping “migrants claim British benefits”.
As you might expect, the article is as full of arrant nonsense as the new guide – which can be downloaded for free here – is full of useful information. Nonsense like this:
In a list of examples of past cases, it even cites Islamist cleric Abu Qatada’s successful challenge under human rights laws against Home Office attempts to send him back to Jordan to face terror charges
The Supreme Court has produced a rather excellent short YouTube video about what it does. Look out for interviews with Justices, a funky 3D representation of the UK court system, a bit of court action and of course, cheesy muzak.
Regular readers will know I am a big fan of the Supreme Court’s efforts to be accessible to the public, which stand in stark contrast to the almost non-existent efforts of the rest of the UK justice system. You can find an article about the video by the court’s Chief Executive here and one reviewing the court’s innovations here.
Max Hastings greeted the new Supreme Court with the prediction that it was a “constitutional disaster in the making.” For Hastings this was Blair’s Court, Blair’s legacy; its creation just one more example of Labour’s wrecking of ancient British institutions. Of course, there was also positive coverage in the early days in papers like the Guardian and Times, but ideally the Court needed to get its own message about itself. How has it gone about doing this? And what has it been saying? What challenges has it faced in its first three years?
This blog (a shortened version of an article out this month in Public Law) looks at the Court’s innovative approach to getting the message out not only about what it is doing in cases, but also about its role in general. It is a topic covered recently by Adam Wagner, here. At the heart of the Public Law article is the idea that the Court is quietly asserting its role as a new and powerful constitutional actor. Its communication’s operation has been at the heart of this.
Thanks to Caoilfhionn Gallagher of Doughty Street Chambers for alerting me to this.
The new striker in Real Madrid
Comparing different countries’ legal systems is a dangerous game, but three cases came to light this week which beg to be compared. The criminalisation of criticising political leaders has always been a hallmark of illiberal societies, and it seems that the tradition is still going strong today: in France, the West Bank and the UK too.
First, the European Court of Human Rights ruled that a man should not have been convicted of a criminal offence for waving a placard at (as he was then) President Sarkozy reading “Casse toi pov’con” (“Get lost, you sad prick”). He was prosecuted for insulting the president, an offence under an 1881 Act, even though the phrase was one of Sarkozy’s own, uttered a few months previously. The Court rightly found a violation of the applicant’s rights to free expression protected under Article 10 ECHR, stating that satire, including satirical impertinence:
Supreme Court Live in action
Following yesterday’s welcome announcement that the UK Supreme Court (UKSC) is uploading judgment summaries to YouTube (see Adam’s post), there has been some speculation as to whether the UKSC will take the next step in its embrace of digital technology and upload full hearings of trials. But could taking this step result in falling foul of the UK’s copyright law?
There are several issues to consider here. Firstly: who owns the recording? Secondly: what rights do the individuals involved in the recording have? And finally: what defences (if any) apply?
The 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
YILDIRIM v. TURKEY – 3111/10 – HEJUD  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.
Section 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
The 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.
For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.
Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night. The full speech can be read here.
A short post to say that I was interviewed by Joshua Rozenberg for today’s Law in Action programme on BBC Radio 4. I was debating, with Nadine Dorries MP, a recent series of criminal prosecution (see my post from last week) brought against social media users. The debate centred on the implications for freedom of speech as protected by Article 10 of the European Convention on Human Rights.
The full programme can be listened to here (UK only, I think) - the social media section is from around 20 minutes in. You may have guessed from my post as well as this interview that I think the current state of the law under the Communications Act 2003 is causing very significant problems for freedom of expression.
Relatedly, I am chairing an interesting panel debate tomorrow (Wednesday) evening on this very topic. I understand the event is full but you can submit questions ahead of the event to or follow for live tweets @HumanRightsLawA ; #lawandtwittering
Enjoy the show, and be careful what you tweet.