Freedom of Expression


The Stig revealed: why, and does it matter?

6 October 2010 by

British Broadcasting Corporation v Harpercollins Publishers Ltd & Anor [2010] EWHC 2424 (Ch) – Read judgment

As has been widely reported, the BBC has failed in its attempts to obtain an injunction preventing the driver Ben Collins from revealing in an autobiography that he was The Stig in Top Gear. On 4 October 2010 Mr Justice Morgan handed down his reasoned judgment in the case, which has been summarised on the Inforrm blog.

The judgment itself contains few surprises. Morgan J held that Collins himself was not a party to any contracts with the BBC, the contracts in question having been agreed between the Corporation and a company established to service Collins’ business interests (para.20). It followed that the BBC had no claim in contract law against him personally for an alleged breach of a confidentiality clause. However, Collins was still bound by an equitable duty of confidentiality that prevented him from revealing The Stig’s identity (para. 20). Morgan J considered that this duty would still have applied at the date of the trial if this information had continued to be confidential (para. 50). However, as a result of numerous press reports (para. 52):

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Media freedom under review

20 September 2010 by

Updated | Recent weeks have seen some interesting developments in the debate over freedom of expression of the press.

Last week saw a decision of Grand Chamber of the European Court of Human Rights in Sanoma Uitgevers B.V. v. the Netherlands. The case related to the protection of journalistic sources, and has been described as a “victory for press freedom”.

The court held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. The Dutch prosecutors in the case, which had ordered the production of a CD-ROM containing potentially incriminating photographs of participants in an illegal race, had therefore breached Article 10 (freedom of expression).

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New senior media judge to play important role in balancing of rights

15 September 2010 by

Eady to go

The Lord Chief Justice has announced the appointment of Mr Justice Tugendhat as Judge in charge of the Jury and Non-Jury Lists with effect from 1 October 2010. This makes him the senior ‘media judge’ in England and Wales, and he will play an important role in balancing rights to privacy against freedom of expression.

The Jury and Non-Jury lists contains general civil law, including defamation and privacy. The Judge in charge has responsibility for managing the work in the lists and assigning judges to cases.

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Turkish authorities did not do enough to protect rights of murdered journalist, says European Court

14 September 2010 by

Dink v. Turkey (applications no. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09) – This summary is based on the European Court of Human Rights press release.

In the case of Dink v. Turkey the European Court of Human Rights concluded that the authorities failed in their duty to protect the life and freedom of expression of the journalist Firat (Hrant) Dink, a prominent member of the Armenian minority in Turkey who was murdered in 2007.

Dink was a Turkish journalist of Armenian origin, and the publication director and editor-in-chief of Agos, a Turkish-Armenian weekly newspaper.

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“Nazi” jibe DJ loses freedom of expression claim [updated]

13 July 2010 by

Gaunt v OFCOM [2010] EWHC 1756 (QB) (13 July 2010) – Read judgment

The High Court has ruled that OFCOM did not breach a DJ’s freedom of expression rights by finding that he  contravened the Broadcasting Code after calling a guest a “Nazi” during an interview on talkSPORT. The decision by the regulator led to the DJ’s sacking.

Jon Gaunt applied for judicial review of the decision by OFCOM that he had breached rules 2.1 and 2.3 of the Broadcasting Code. Liberty supported his claim. He argued that OFCOM’s decision amounted to a disproportionate interference with his freedom of expression and an infringement of his rights under Article 10 of the European Convention on Human Rights.

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Libel reform watch [updated – even Wayne Rooney is affected]

7 June 2010 by

Update 08/06/10: Is there no limit to the damage which restrictive libel laws can do? A Wayne Rooney biography, and possibly England’s football World Cup chances, are the latest victim of threats of libel action, says Afua Hirsch in the Guardian:

I’m not saying that information about Rooney’s background is up there with other public interest revelations that have been caught by libel law – lying politicians or innocent people dying from toxic waste, for example. On the other hand, if the Daily Star is to be believed, the book is fundamental to England’s World Cup performance. The paper claims that the book, which I haven’t read, contains “embarrassing material on the England hero” and “is threatening to derail England’s World Cup dreams.”

The law of libel and defamation sets the limits of freedom of expression. It is therefore unsurprising how many conflicting views there are on the Government’s proposed libel reforms. To keep up with this fast-moving debate, we are introducing a new feature: Libel reform watch.


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Libel reform debate media round-up [updated x 3]

1 June 2010 by

We posted on Friday that the libel reform debate is hotting up now that the Coalition Government has pledged to reform the law of libel. We are following the debate because of the wide-ranging implications any significant reform will have for the law of freedom of expression, as a number of articles published over the weekend demonstrate.

Lord Lester, who has recently produced a draft libel reform bill, writes in the Times:

The chilling effect of our current libel law needs urgently to be tackled by the government and parliament. I hope that my bill will be the catalyst for much-needed legislative reform.

John Kampfner, chief executive of Index on Censorship, an organisation which aims to promote freedom of expression, writes in the Guardian:

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Evolution of a right to freedom of information?

6 May 2010 by

For much longer?

Whichever party wins today’s General Election, freedom of information in and outside the courts will be a key issue for the incoming government. In light of this, Hugh Tomlinson QC asks whether a “right to freedom of information” is evolving through human rights case law in an interesting piece on the International Form for Responsible Media Blog (Inforrm).

The Government is under increasing pressure to release information which was once uncontroversially secret. As we posted yesterday, freedom of information is a hot topic in the courts at the moment, specifically in the context of the security services and the information they are obliged to disclose to defendants in criminal trials and claimants in civil proceedings. In those scenarios, the right to a fair trial was conditional on a right to see information which goes to the heart of that trial (Article 6 ECHR). However, when divorced from the right to a fair trial, there is as yet no explicit right to information.

Article 10 of the Convention only extends to the right to “hold opinions and to receive and impart information“. This does not necessarily entail a right to access confidential Government information. Hugh Tomlinson says:

This has often been identified as an important weakness in the Convention. However, the position is changing: the Convention is a “living instrument” and recent case law suggests that, in accordance with international trends, the Convention may be evolving its own “right to freedom of information” as a fact of the right to freedom of expression in Article 10 of the Convention.

We posted recently on the the robust freedom of expression enjoyed by those living in the United States, as compared to the arguably less robust freedoms in the UK under Article 10 of the Human Rights Act 1998. Freedom of expression has gone hand in hand in the United States with superior access to government information. The US Freedom of Information Act was passed by Lyndon Johnson in 1966. It is only with the Freedom of Information Act 2000, sister-legislation to the Human Rights Act, that the UK has begun to catch up. The development of a right to freedom of information would close that gap further. As Tomlinson argues:

… the Court of Human Rights has recognised that there can be a right to access to official information. In some cases this has been done by reference to Article 8 of the Convention… Most recently, in the Hungarian Civil Liberties Union case (Társaság a Szabadságjogokért v. HungaryJudgment of 14 April 2009) the applicant had been refused access to a constitutional complaint made by an MP. The Court said that “the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information” [27]

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Feature | Freedom of expression, the American way

26 April 2010 by

The UK Supreme Court Blog has posted on United States v Stevens, a US Supreme Court decision on animal cruelty videos, involving “freedom of expression in the extreme”. The decision provides for an interesting comparison with the approach to freedom of expression in the UK courts.

If the Human Rights Act 1998 is replaced by a Bill of Rights, the Bill’s drafters are likely to look at other legal systems in order to see how best to recalibrate the balance of the various protections. The drafters of the European Convention on Human Rights themselves had the US Bill of Rights, which has been in force since 1791, as inspiration.

Similar but different

Arguably, the US Bill of Rights places a stronger emphasis on freedom of expression than our domestic law. Freedom of expression under Article 10 of the European Convention is subject to a number of qualifications. There is a long list, including the interests of national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the reputation or rights of others.

Section 12 of the Human Rights Act 1998 shifts the balance slightly, by stating that a court must pay “particular regard” to cases involving the public interest in disclosure of material which has journalistic, literary or artistic merit.

By contrast, despite the US Bill of Rights’ 219 years on the statute books, there remains only a very limited list of forms of expression which are not
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High Court defends freedom of expression for news websites

12 April 2010 by

SAMUEL KINGSFORD BUDU v THE BRITISH BROADCASTING CORPORATION [2010] EWHC 616 (QB), 23 March 2010

Read judgment

A claim for libel in respect of three articles in a news website’s archive has been struck out in the Hight Court by Mrs Justice Sharp. When read in context, the articles were incapable of bearing the alleged defamatory meaning, the publisher had attached Loutchansky notices to them, and it would be a disproportionate interference with the publisher’s rights under ECHR Article 10 to allow the claim to proceed where it had been brought after four years had passed since the publication of the articles.

Summary

The Claimant brought proceedings in respect of three archived articles published by the BBC in mid 2004. They related to the decision of Cambridgeshire Constabulary to withdraw an oral job offer made to the Claimant after subsequently investigating the legality of his immigration status. Within weeks of first being published, the articles became accessible only in the archive, via search engines. The action related to the articles in the archive and the related Google snippets.

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