Media Law - European Convention on Human Rights - Essay Example

MEDIA LAW Media law In an open and democratic society, freedom of speech is of essence. The press and broadcast media should have the right to criticise especially those in power and it is also one of the ways the citizens hold those in power accountable as well as expressing their individuality as citizens.1 Privacy as provided in the English law considers in what areas and situations an individual can claim the legal right to information that is private. This was not always the case as historically, English law did not recognize the general right of privacy. With the development of Human Rights Act of 1998, things have changed as it has incorporated the European convention on Human Rights which provides an explicit right to respect for private life. the inclusion of the ECHR and particularly the guarantee to the right to privacy has had a considerable effect on the developing protection on people’s privacy in the common English law. Different views have been given as to whether a law of privacy is required and its potential effect to the media over the years. With the absence of tort law or privacy law in the past, different methods have been used to solve cases that involve allegations of infringement on a person’s privacy. These include, the equitable remedy of confidence, administrative laws principles relating to appropriate use of police powers and different torts associated with intentional infliction of harm to an individual. Privacy law is an increasingly developing area of English law and it determines in what situations a person possesses the legal right to informational privacy this being the protection of personal information from being misused or for the media to use it in an unauthorised manner. The development of media from press to an all new digital way of communication poses a challenge to the existing privacy law for the individuals in the UK and Wales today. This is because of the rapid technological advancement and the popularisation of social media. Scholars posit that this change may make it inevitable for the privacy law to be amended and updated. The Supreme Court president, Lord Neuberger, for example has said that the major and astonishing advancements in technology continue to create a big challenge for people involved in the law and media. He further said that the easiness of recoding and accessing private information which can be doctored or misinterpreted has made it particularly hard for the judges involved in determining cases involving people’s privacy. This could undermine the rule of law if the law is unenforceable. The UK however lacks dedicated privacy laws. People, especially celebrities who seek to prevent information about them to be made public tend to bring cases under the right to private and family life available in the European Convention on Human Rights which is enforceable since the activation of Human rights Act in 1998.2 This right to privacy can be looked at more as an aspect of freedom of expression rather than an exclusive right to privacy. For example if a person wants to do or say something he or she is only prepared to do or say privately, it can be looked at as interference with the persons freedom of expression if the person does not say or do it due to the fear that it will be published in a newspaper or reported on social media. Many court battles between people who wish to keep their information private and confidential and a media house, such as a newspaper who wish to publish what has been said is a battle between two claims competing based on freedom of expression. Privacy Law suits A few examples of cases relating to privacy in the UK can be cited. First the Mosley versus the News group newspapers in 2008. Max Mosley was the president of the Federation International de l’Automobile which is the governing body of motor sport worldwide. Mr. Mosley was filmed in a flat engaging in what has been described as sado-masochistic activities with five women. An edited version of the recorded activities was made available at the newspapers website with news of the world article with the title, ‘F1 boss has sick Nazi orgy with five prostitutes’. Max Mosley claimed that this was an infringement on his privacy by the newspaper. He did not deny that the activities shown on the footage occurred but he denied the Nazi element.3 The outcome of the case was that Mosley be awarded £60, 000 in damages since there was no evidence that the sexual activities involved were an enactment of the Nazi behaviour or adoption of any of its attitudes. Regardless of the unusual sexual activities, they were not of public interest or other justification of private recording for the issuance of the footage to the public on the newspapers website. It is yet to be seen whether this case has influenced newspapers and magazines to take more seriously in future the invasion of privacy of an individual. Defining privacy can be compared to defining a person’s state of being. Retention of an individual’s dignity is of paramount importance in that if the press was able to release information considered private with impunity, it could illegitimately restrict people’s choices in their private behaviour and this interferes greatly with their autonomy. Experts argue that privacy is pivotal to human flourishing but the individual elevations of this privacy are hard to define and the courts should balance each case accordingly. As such, the balance between press freedom and an individual’s privacy has elicited much debate and especially with the deep celebrity intrusion, invasive cameras and confessional journalism. Freedom of expression is the foundation of the English democracy and is very crucial to the media. The notion that freedom to participate in free expression and reception of opinions and ideas in the press is of essence to human development.4 It is also a major principle theory of media and its importance to the society. Journalism however in the recent times continues to prove that it is consistently intrusive and the freedom of speech or public interest defence increasingly plausible. This is evident in the case of privacy invasion, Naomi Campbell versus the Mirror Group. The Mirror Group Limited published photographs of Campbell outside a rehabilitation clinic even though it was publicly known that she was receiving treatment. This is a classic case of interference of a person’s right to privacy. Miss Campbell consequently claimed damages for breach of confidence and compensation as per the Data Protection Act of 1998. The allegations against the Mirror Group were wrongful publication of private information. The judge who was presiding over the case awarded compensation for damages but it was to later be reversed at the court of appeal. The basis of this was that publication of particular information was of public interest. The journalist behind the story had to be issued with reasonable latitude as to how information was conveyed. Further appeal concluded that based on Campbell’s previous denials concerning drug taking, she could not seek protection against any information of her drug taking.5 Her major argument was that the photographs of her leaving the rehab clinic were of private nature and as such her right to privacy under the Human Rights Act 1998 had been interfered with. This right according to her outweighed the newspapers freedom of expression under the very same Act. Her claims were upheld since the court acknowledged that publication of information regarding Campbell’s drug taking was essential in setting the record straight but at the same time recognised that the photographs were invasion of her private life and as such her right under Article 8 of the Human Rights Act 1998 outweighed the newspapers freedom of expression under Article 10.6 The key issue in this case was the balance that had to be drawn between right to privacy and freedom of expression. Lord Nicholls emphasised that the publication of the information was a minor invasion of Campbell’s private life and if the information was not published, it would have denied a legitimate and sympathetic paper a story that added colour and conviction. The freedom of expression of the newspaper needed to be weighed against respect of a person’s private life. The Human Rights Act has played an important role in this case as per the provisions of article 8 which is concerned with respect for private and family life and Article ten which touches on freedom of expression. Both articles are equally significant as seen in this case where the court had to pay particular attention to various aspects of the case where both the articles apply. The courts must therefore balance between privacy and the freedom of expression.7 Public interest does not necessarily mean what the public is interested in. This is the justification used by the media to learn about the lives of famous people and politicians. This therefore should not be used as a way of denying public figures their right to private life which everybody else enjoys. Public figures should also not be held to higher standards of personal behaviour than the rest of the society by the press with the aim of selling newspapers through sensations.8 If the newspapers were to concentrate on the policies and public actions of politicians, democracy would be enhanced. Before the HRA, the courts accepted that public interest justified only certain disclosures and this was not to the general public. Using this perspective, it is important to draw a distinction between publication of material that is of importance to the public such as politics on one hand and celebrity gossip on the other hand. Celebrity gossip is much likely to be an intrusion to privacy but less likely to be protected by freedom of speech arguments. The English law takes a normative approach to the argument of public interest. In the courts view, it is only properly brought out as a defence to an action involving breach of confidence and when the publication showcases material in which the public is interested in. The Reynolds versus Times newspapers is an example of how common laws has progressed to harmonise with the above mentioned articles. This was a case of defamation where Mr. Reynolds a prominent figure in Ireland sued the newspaper for publishing an article that related him to the political crisis in Ireland in 1994whish subsequently led to his resignation as the prime minister of Ireland and as the leader of his party. The article accused him of having misled his colleagues and withholding information that was crucial to the public.9 The court for the first time recognised that press publications can be protected by privilege so long as they provide justification of public interest and practice responsible journalism. Remedies involved An injunction is a remedy presented as a court order to compel a party from performing specific acts. A person issued with an injunction should always comply since failure means criminal or civil penalties including monetary charges or imprisonment. This remedy originates from the English courts of equity. It is issued when a wrong cannot be effectively remedied by awarding of money for damages.10 The main objective of an injunction is to restore the rights of the person who has been violated against. However, granting of an injunction is also based on the non-parties interests such as public interest. The courts also recognise fairness and good faith when issuing an injunction. Injunctions are used in different cases and especially those that involve people’s privacy. They prohibit future violations of the law which include trespass on private property, infringement of a patent or violations of what is meant to be a constitutional right like freedom of speech. It may require a person to either steer clear of private property or even not to publish about certain information involving an individual’s privacy. In the UK and Wales, super-injunctions have been issued. These are injunctions whose details are not regally reported and the facts and allegations are not disclosed. This is an interim injunction which prevents a person from publishing information concerning the applicant which is meant to be private and confidential. It is also restricts publishing of information to inform others of the ongoing injunction. A good example of a super injunction which has failed to be upheld in the UK is the case of John Terry versus Persons unknown. He had obtained a super injunction to prevent the tabloid newspaper from to publish a story about his private life. The injunction was however lifted by the high court in 2010 on the basis that the injunction was to prevent commercial interests. In this case, it is argued that his main worry was not his privacy but protection of his commercial interests as per the sponsors. The case of the much publicised injunction preventing the reporting of parliamentary proceedings by the Guardian in 2009 about an oil corporation is another example of super-injunction. The Guardian had been prevented from publishing reports regarding the company dumping waste in the Ivory Coast. The ban was lifted a day after it was issued. However, it raised public suspicion of such gag orders and consequently led to a debate in the House of Commons.11 Gag orders have been around and especially involving celebrities which force the newspapers to omit certain details such as names or location of the story to avoid violation of the injunction. This works through the courts where a violated party can sue for compensation for damages caused. Max Mosley was awarder £60, 000 for the damages cause to his reputation by a newspaper that posted a private video on their website where he was involved in unconventional sexual acts. This is just but one of the many examples where compensation for the infringement of privacy has occurred in the UK and Wales. One is free to sue for compensation if he or she can prove that individual freedom has been infringed upon. Article 12 of the Human Rights Act majors on freedom of expression, it is used by the courts when determining whether to grant any relief which if granted may affect the right to freedom of speech. If the respondent is not present or is not represented, such relief cannot be granted not unless the court has satisfaction that the applicant has taken all the necessary steps to inform the respondent and if there are compelling reasons as to why the respondent should not be notified. The article further posits that it is important to protect the right to freedom of expression and if the material of the proceedings relates to the claims of the respondent, in most cases a newspaper or a magazine, or if the material presented is journalistic, literally or artistic.12 In this case, under Article 12, the court will determine whether in deed the material is of public interest or whether it should be regarded as private and therefore not made available to the public. This is a matter of distinguishing between privacy and freedom of expression. The celebrities and prominent figures are the worst hit and also are mostly the ones who seek protection under this particular article.13 Distinguishing between privacy and public interest will for a long time continue to be a dilemma in the judicial proceedings involving privacy cases in the UK and Wales. Bibliography Robertson F, Geoffrey, and Andrew G. L. Media law. London. (Penguin 2007). Nicol, Andrew G. L, Gavin Millar, and Andrew Sharland. Media law & human rights. Oxford (Oxford University Press 2009). Covell, Wayne, and Keith Lupton. Principles of remedies. Chatswood, N.S.W. (LexisNexis Butterworths 2009). Steele J. Tort law: text, cases, and materials. (2004) Kavanagh. A. Constitutional review under the UK human rights act. Cambridge [etc.] (Cambridge University Press.2009) Elaine M. Judicial decision-making in a globalised world: a comparative analysis of the changing practices of western highest courts. (2013) Fenwick, Helen, Gavin P, and Roger M. Judicial reasoning under the UK Human Rights Act. Cambridge (Cambridge University Press.2010) Read More