Freedom of Expression

Evolution of a right to freedom of information?

6 May 2010 by Adam Wagner

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. Hungary, Judgment 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]

Read more:

• Summary of freedom of information manifesto commitments here and here
• The Inforrm post: part 1, part 2, and part 3

Feature | Freedom of expression, the American way

26 April 2010 by Adam Wagner

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 Isabel McArdle

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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