Category: Article 10 | Freedom of Expression
2 December 2012 by Adam Wagner
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!
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29 November 2012 by Adam Wagner
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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28 November 2012 by Rosalind English
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.
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26 November 2012 by Guest Contributor
This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.
As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.
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21 November 2012 by Guest Contributor
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.
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21 November 2012 by Rosalind English
Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) – read judgment
Turner v East Midlands Trains [2012] EWCA Civ 1470 – read judgment
Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority.
It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.
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23 October 2012 by Matthew Flinn
Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of international news coverage. And it’s not over yet.
It all stems from a request for information made under the Freedom of Information Act 2000 (“the Act”) and the Environmental Information Regulations 2004 (“the Regulations”) by a Guardian journalist, Mr Rob Evans. In April 2005 he wrote to seven Government Departments, and asked for a list of correspondence between Prince Charles and the ministers for those Departments between 1 September 2004 and 1 April 2005, as well as copies of each piece of correspondence. Many of the Departments initially relied on exemptions contained in the Act in order to refuse to confirm or deny whether or not they held such information. Ultimately however, all the Departments admitted that such correspondence did exist, but they refused to disclose it.
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18 October 2012 by Rosalind English
I have posted previously on the logistical difficulties in legislating against genetic discrimination.
The prospect that genetic information not only affects insurance and employment opportunities is alarming enough. But it has many other implications: it could be used to deny financial backing or loan approval, educational opportunities, sports eligibility, military accession, or adoption eligibility. At the moment, the number of documented cases of discrimination on the basis of genetic test results is small. This is probably due to the relatively few conditions for which there are currently definitive genetic tests, coupled with the expense and difficulty of conducting these tests. But genetic discrimination is a time bomb waiting to be triggered and the implications of whole genome sequencing (WGS) are considered in a very interesting and readable report by the US Presidential Commission for the Study of Bioethical Issues Privacy and Progress in Whole Genome Sequencing.
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16 October 2012 by Adam Wagner
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.
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10 October 2012 by Adam Wagner
Update – only 29 places left (2:10pm)
For anyone interested in the issues I raised in my post yesterday about a man given twelve weeks in prison for making sick jokes on Facebook, I am chairing a Question Time-style panel debate next Wednesday 17 October 2012, 6-7:30pm, organised by the Human Rights Lawyers Association and Article 19, the free speech charity. Article 19 are hosting the event at their offices in Farringdon.
The panel is excellent, including Tamsin Allen (head of Media and Information Law at Bindmans solicitors), John Cooper QC (amongst many other things, counsel for Paul Chambers in the Twitter joke trial) and Gabrielle Guillemin (legal officer at Article 19). The event is free and open to all, but space is limited so if you would like to come, please email administrator@hrla.org.uk.
Full details below or in a prettier version, here:
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9 October 2012 by Adam Wagner
Updated x 2 | A 20-year-old has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. His attempts at humour were undoubtedly stupid, offensive and exhibited incredibly poor taste and timing. But is a long spell in prison really the way we should be dealing with offensive idiots? Is a law which was passed before social media existed now placing a significant chill on our freedom of expression rights?
Matthew Woods pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character“. He was sentenced at Chorley Magistrates’ Court.
I will not republish Woods’ comments here, but some of them are quoted in this Evening Standard article.
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8 October 2012 by Rosalind English
Print Media South Africa v Minister of Home Affairs ([2012] ZACC 22) – read judgment.
In a “momentous” ruling on freedom of speech, the Constitutional Court has struck down a legislative provision on prior restraint, “based on vague and overly broad criteria”, as offensive to the right to freedom of expression.
As the attorney for the amicus curiae Dario Milo explains in the Weekly Mail and Guardian (reposted on Inforrm), the court went even further than the relief contended for by the applicants, by striking down the entire provision as unconstitutional, rather than allowing certain criteria to be clarified in accordance with the Bill of Rights.
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24 September 2012 by Guest Contributor
Tomorrow, Liberal Democrats will debate the Justice and Security Bill and will vote on saying no to the Government’s controversial secret courts proposals. Played in the press as a good opportunity to put clear blue water between the coalition partners, the motion will give a party members a chance to speak out on a Bill which many see as an anathema to the traditional liberal commitment to open, fair and equal access to justice.
The Bill would – for the first time – introduce the controversial “closed material procedure” (CMP) into our ordinary civil justice system. In CMP, one party to proceedings and their legal representatives are excluded from a hearing and from seeing any evidence, argument or judgment associated with closed material, leaving Special Advocates (security vetted lawyers) who they cannot discuss the case with to represent their interests as best as possible. These exceptional procedures have been criticised by both commentators and courts since their inception as a flawed and unfair mechanism which endangers the rule of law and open justice (JUSTICE and others have dissected the Bill on this blog and elsewhere, highlighting its serious long-term political and legal implications).
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20 September 2012 by Adam Wagner
The Crown Prosecution Service (CPS) has decided not to charge Daniel Thomas for posting a homophobic message on Twitter, the social networking site, about the swimmer Tom Daley. The press release, which takes the form of an extended quote from the Director of Public Prosecutions, is fascinating. I have reproduced it in full below.
In short, the CPS has decided not to charge Thomas as he “intended the message to be humorous”, removed it quickly, didn’t intend it to go beyond his followers (“however naive” that was), has expressed remorse and Daley did not find out about the message until after it had been reported in the media.
The DPP has also used the opportunity to announce that he is drafting new guidance for social media prosecutions and also to say that whilst “serious wrongdoing” could be the subject of prosecutions,
The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.
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22 August 2012 by Guest Contributor
One of the possibilities being considered by Lord Justice Leveson as he writes the Report for Part 1 of his Inquiry is whether there should be compulsory regulation of the print media. One, widely discussed possibility is a statutory framework which would require any publisher with turnover or readership above a set threshold to join a “regulatory body”: compulsory regulation for large publishers.
The purpose of such a provision would be to deal with the so-called “Desmond problem” – the anomaly of a system of regulation which does not cover all the large newspaper publishers. But an important freedom of expression question arises: is the compulsory regulation of the print media compatible with Article 10 of the European Convention on Human Rights? This is not a question which has ever been considered by the Court of Human Rights and the answer may not be an entirely straightforward.
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