The Concept of the Freedom of Speech - Essay Example

?The Freedom of Speech: Always in the Public Interest? Introduction This paper will assess the controversial issue and heated debate surrounding the concept of the freedom of speech and the general notion of the press that they should be given the freedom of expression because of the public interest argument. While the courts have often upheld this argument, they have taken an approach which restricts the definition of the public interest. It will be argued that the prevalence of the freedom of speech due to the public interest argument is not always sound, and that a careful distinction should be made between the public interest and the private lives of individuals. The Freedom of Expression & Speech In the case of Handyside v United Kingdom1 the European Court held that freedom of expression comprises one of the vital foundations of any democratic society. As defined in Article 10(1) of the European Convention on Human Rights, which is directly applied in English law by the Human Rights Act 1998, it states that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” It is commonly recognised that there exists a public interest in the freedom of expression and hence the freedom of the press.2 In R v Shayler3 Lord Bingham stated that the right is fundamental because: “Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments.” The right to freedom of expression was established and assigned a considerable amount of protection before the Human Rights Act came into the realm of English Law, particularly in relation to certain torts which were protected at common law. The implementation of the HRA has brought the opinion that Article 10 merely strengthens and emphasises principles which were already evident in English case law.4 The general approach of the courts is that any interference in the freedom of expression is viewed as an infringement of individual liberties and the right to a moral form of autonomy: the right of individuals to make choices and express views by communicating them to others.5 Additionally, Article 10 goes as far as to protect the expression of certain materials which some may find offensive; in the case of O’Shea v MGN Ltd 6, the court held that pornographic advertisements were a protected form of expression, despite the fact that many were evidently offended at the way in which it degraded women. Of course, the right to the freedom of expression is certainly not absolute; it often comes into conflict with rights contained in the Convention such as privacy. This requires that the courts assess whether the freedom of expression is prevalent over and more important than other rights and interests provided for in the Convention. As will be explored below, the courts have been presented with a difficult balancing task. According to Article 10(2) of the Convention, the freedom of expression can indeed be limited by certain restrictions, provided they are prescribed by law and necessary in a democratic society, which are: “the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” The general approach in terms of famous figures, however, is that the freedom of expression is placed above their privacy interests.7 The task of balancing the right to privacy and the freedom of expression is immense, and not without its difficulties; an ambit of discretion is thus given to domestic courts, as was the issue in the case of R(on the application of X) v Chief Constable of the West Midlands Police.8 However, the courts display a need to take care to apply the right to the freedom of expression as provided in Article 10 ECHR because it is not automatically prevalent over other (conflicting) Convention rights such as the right to privacy. In general, judges consider and examine the extent of the interference when balancing such rights.9 When cases arise which require the balancing of rights, the courts will observe the freedom of expression in the Human Rights Act 1998, which was designed to ease concerns connected to the freedom of the press and its potential conflict with the right to privacy. The Home Secretary has commented on the purpose of section 12: “whenever there is a clash between Article 8 rights and Article 10 rights, they [the courts] must pay particular attention to the Article 10 rights.”10 Section 12 applies whenever a court is assessing whether to grant damages or relief which could restrict the exercise of the freedom of expression right. It is now evident that section 12 does not add a great deal of new or novel content to English or European jurisprudential approaches. In the case of Ashdown v Telegraph Group Ltd,11 the Court of Appeal commented that section 12 actually does little more than: “underline the need to have regard to context in which...jurisprudence has given particular weight to freedom of expression, while at the same time drawing attention to considerations which none the less justify restricting that right”.12 Furthermore, section 12(3) requires that the court should not give a restraining order to prevent publication before the trial takes place unless they are satisfied that the prospects of the applicant’s success at trial are adequately high enough to justify such a restraining order being given.13 However, where a claim for the respect for private life is asserted as provided for in the tort of breach of confidence against the media, the right to the freedom of expression becomes the right which is balanced as the opposing right. It is recognised that: “The right to privacy which lies at the heart of an action for breach of confidence has to be balanced against the right of the media to impart information to the public. And the right of the media to impart information to the public has to be balanced in its turn against the respect that must be given to private life”.14 It can thus be observed that neither right automatically trumps the other – it is simply a case of balancing the rights in every specific situation, under specific circumstances.15 Accordingly, section 12(4) of the HRA provides that any restriction to the right to freedom of expression is to: “be subjected to very close scrutiny. But so too must any restriction of the right to respect for private life. Neither Article 8 nor Article 10 has any pre-eminence over the other in the conduct of this exercise. As Resolution 1165 of the Parliamentary Assembly of the Council of Europe (1998), para.11, pointed out, they are neither absolute nor in any hierarchical order, since they are of equal value in a democratic society”.16 The law thus adopts an approach which simply seeks to balance the rights which come into conflict with the freedom of expression. But has this balancing task given greater weight to the public interest argument to favour freedom of expression over other rights? Do other legal provisions concerning the right to freedom of expression seek to expand or limit its boundaries? Privacy Law and the Freedom of Expression The law of privacy is contained in the HRA 1998, though it does not exist as a separate offence in common law or through additional provisions. Does this weaken its strength against the freedom of expression? Historically, privacy was contained in the traditional connotation which adhered to the freedom of the press, which was purported to adequately protect individual rights.17 The lack of statutory provision beyond the HRA 1998 is an interesting approach in the UK, especially if one’s attention is brought to existing laws of defamation and other such ‘privacy’ laws. Indeed, the courts have accrued an impressive amount of case law which seeks to define and limit the application of privacy. Case law defines when the right to privacy of individuals will be justifiably infringed, and under which concepts and justifications such infringements can occur. Under article 8(1) of the ECHR, the freedom of right to privacy centralises around the concept that individuals possess the right to live without unjustified interference in their personal lives.18 Indeed, exceptions do exist; article 8(2) provides for infringements of privacy so long as they are considered necessary to preserve or protect interests such as health, public safety, morals, or national security and such exceptions are provided by law. Privacy at law was meant to protect individuals against infringements of the state, particularly in events of detention, expropriation and censorship.19 The reach of privacy is noticeable broad and it is arguable that its boundaries are in need of clearer definition,20 particularly if the press is eager to assert its right to the freedom of expression. The courts have indeed attempted to define privacy,21 including such definitions as: “the personal space in which the individual is free to be itself, and also the carapace...which protects that space from intrusion”.22 It is clear that the courts have avoided the development of a tort of invasion of privacy,23 and this has caused problems when it comes into conflict with the freedom of expression; as a result there is no general right to privacy.24 This has been declared by the European Court as being in breach of article 8,25 and it is questionable as to how far the rights of individuals can be protected in the face of the press’ claim to freedom of speech. The HRA has provided some basis for the courts to build upon in protecting the privacy rights of individuals against the press. The most prominent case of Douglas v Hello! Magazine26 created the right to privacy in common law, though this was never put into legislation. Rather the operation of article 8 ECHR coupled with the expansion of the law of confidentiality has created the law of privacy in the UK.27 It is evident through an observation of the courts’ approach that the courts are less willing to protect the rights of the ‘celebrity’; they recognise a genuine public interest in the lives of public figures. As a result, the courts have established that the publication of information which does not uncover private information is not an infringement of privacy,28 and this can be seen as an expansion of the freedom of expression in relation to the press. The case of Campbell v Mirror Group Newspapers (MGN)29 arguably formed a test for assessing whether an invasion of privacy is justified or not. It enquired whether a reasonable expectation of privacy existed, and balanced the interests in upholding the right to privacy against interests in infringing that right. Where information is not obviously intended to be private, the courts will examine whether an individual of ‘reasonable sensibilities’ would be offended if the information were to be published,30 an approach which has been severely criticised as being “a fairly bizarre subjective-objective test”.31 Yet is it accurate to claim that public figures have a lesser right to privacy than private persons? Has the press abused this approach taken by the courts? Is such an approach ‘correct’? It is arguable that those who live a life of fame should expect some degree of public interference, and should hence not be able to make a claim against every publication on their life. It seems that the courts adopt a common sense, case by case approach depending on the particular facts of each case. The right to privacy of the individual, on the other hand has experienced much evolution in previous years. The law has been expanded to include the right to enjoy life, suggesting that “the common law, in its eternal youth, grows to meet the demands of society”.32 Of course, even the right to privacy in this sphere has been subject to derogations, though rarely in terms of freedom of expression. Rather infringements in the interest of general public safety have applied as justificatory infringements of individual rights to privacy;33 freedom of expression is trumped by private individuals’ right to privacy. It thus seems that the freedom of expression enjoyed by the press is limited to public figures, and is not always upheld when in conflict with the right to privacy. But is this an appropriate approach? Should public interest in the lives of the rich and famous assign special protection to the press against infringements of privacy? Public Interest In the case of Vonn Hannover v Germany, it was held that the main feature in the balance of the right to private life against the freedom of expression was whether “the published photos and articles make to a debate of general interest”. Importantly, the court added that:  The public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.’34 This is an important statement in that it injects a sense of reality into the tendency of the courts to uphold the freedom of expression of the press against the right to privacy. A clear distinction has been made between a public interest and a legitimate public interest, in that only the latter serves to increase the freedom of expression. It seems that interfering with either article 10 or 8 must be balanced against a proportionality test, so that infringements are proportionate to the restriction of the right infringed: ‘As each is a fundamental right, there is evidently a “pressing social need” to protect it’.35 It also places a restriction on the argument of the press that any information can be held to be in the public interest and thus worthy of special protection. The freedom of expression argument used to infringe the privacy of others must be non-arbitrary, rational, and fair. The common sense approach of the courts causes them to seek a proportionate outcome to each case. In the case of H v Associated Newspapers Ltd,36 the Court of Appeal held that a newspaper was not permitted to identify a health worker who had resigned from the health service due to his diagnosis of HIV. The reasoning of the courts revolved around the notion that releasing such information would not be in the public interest, and it was thus not justified. In the case of T v BBC37 the High Court held that the revealing of a vulnerable mother’s identity in a documentary concerning adoption was not permitted because it would gravely infringe her privacy and undermine her dignity. The court held that the public interest could be satisfied without the presentation of her identity. Although the courts are reluctant to infringe the privacy rights of individuals, even in terms of the public interest argument, their approach is somewhat different when concerning public figures. The courts generally adopt the notion that there exists a general public interest in the lives of public figures, and that this should permit greater degrees on invasion into their privacy.38 As has already been noted, the courts attempt to restrict this potentially broad ambit was established in the decision of Campbell v Mirrors Group Newspapers Ltd39 in which a general and reasonable expectation of privacy existed despite the public existence of celebrities and the famous. Such expectations, it held, were not to be overridden simply because the public is interested in discovering details of their private life. The House of Lords held that photographs which had been published of Naomi Campbell leaving a drug rehabilitation clinic were an unjustified interference with her right to privacy. However, the courts did not take a general view here; they stated that the content of the case had the potential to interfere with the success of her therapy. If the photographs were of her leaving a club, the result would have been different. This case does thus not show that the courts balance the right to privacy and the right to freedom equally in terms of public figures and private individuals. When information is published on public figures, the intrusion must be perverse or gross,40 which arguably gives the press a wide ambit to work in. Conclusion In conclusion, it can be stated that the argument of the press which claims that the privacy of others can be infringed because a general public interest exists is a concept which is not readily observed by the courts. While no general approach can be observed, the courts take a case by case approach and apply the principle differently between private individuals and public figures.41 The ambit assigned to the freedom of expression is inconsistent, and the courts have sought to balance it against the right to privacy. The law is somewhat lacking as to the specific criteria which are to be applied here, and the failure of the HRA to create a “new cause of action between private persons” has arguably left voids in the law on this topic.42 While there often does exist a public interest in the lives of others, this should not operate to assign the press special protection – there is a huge distinction between a public interest and a legitimate public interest.43 It is perhaps necessary for the courts to further define legitimacy in terms of the public interest in order to establish what is acceptable and where the line will be drawn. While all cases are different, it can be said with certainty that assigning the press a general special protection would be dangerous. The fact that this has not be expressly done by the courts suggests the importance of privacy over the freedom of expression. Eady J in the case of Moseley v News Group Newspapers Ltd44 was careful to stress that intrusive journalism would not be permitted by the public interest defence, as this had the potential to be abused greatly.45 It is thus the general approach of the courts that the press are not and should not be given special protection, for in many cases the infringement of privacy is disproportionate to the right to expression. References Publications Deacon, R., Lipton, N., and Pinker, R., Privacy and Personality Rights: Commercial Exploitation and Protection, Jordan Publishing, London, 2011. Elliott, C., and Quinn, F., Tort Law, 7th edn, Pearson, Essex, 2009. Friedmann, D., and Barak-Erez, D., Human Rights in Private Law, Hart, Oregon, 2001. Gibb, F., ‘New Privacy Law “Will Make no Difference” to Judges’ Role’, The Times: http://www.thetimes.co.uk/tto/law/article3002872.ece, accessed 10/11/2011. Horsey, K., and Rackley, E., Tort Law, 2nd edn, Oxford University Press, New York, 2011 Klug, F., and Starmer, K., ‘Standing back from the Human Rights Act 1998; How Effective is it Five Years On?’, Public Law, vol. 5, 2005 McLean, A., and Mackey, C., ‘Mosley v News Group Newspapers Ltd: How Sado Masochism Changed the Face of Privacy Law; A Consideration of the Max Moseley Case and Other Recent Developments in Privacy Law in England & Wales’, European Intellectual Property Review, vol. 32, no. 2, 2010. Warren, S.D. and Brandeis, L.D., ‘The Right to Privacy’, Harvard Law Review, vol. 4, no. 193, 1890, pp. 193-196 Cases A v B plc and Another [2002] 3 WLR 542 Anufrijeva v Southwark LBC [2004] Q.B. 1124. Ashdown v Telegraph group Ltd [2001] EWCA Civ 1142, [2002] Ch 149. Attorney-General v Guardian (no 2) [1990] 1 AC 109. R v Broadcasting Standards Commission ex p BBC [2001] QB 885. Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2005] UKHL 61. Cream Holding Ltd v Banerjee [2005] 1 AC 253. Douglas v Hello! Magazine [2001] 2 WLR 992. R (on the application of Ford) v Press Complaints Commission [2002] EMLR 5. H v Associated Newspapers Ltd [2002] EWCA Civ 195. Handyside v United Kingdom [1979-1980] 1 EHRR 737. Lingens v Austria [1986] 8 EHRR 407 Malone v Commissioner of Police [1979] Ch 344. Moseley v News Group Newspapers Ltd [2008] EWHC 1777 QB. R (on the application of Razgar) v Secretary of State for the Home Department (No.2) [2004] UKHL 27. O’Riordan v DPP [2005] EWHC 1240 (Admin). O’Shea v MGN Ltd [2001] EMLR 40 Orejudos v Royal Borough of Kensington and Chelsea [2003] EWCA Civ 1967 at 20. R v Shayler [2002] UKHL 1. Sir Elton John v Associated Newspaper [2006] EMLR 772. T v BBC [2007] EWHC 1683 (QB). Venables v News Group Newspapers Ltd [2001] 2 WLR 1038. Vonn Hannover v Germany [2004] 294 ECHR,l, [2004] EMLR 21. W v Egdell [1990] Ch 359. Wainwright v Secretary of State for the Home Department [2004] 2 AC 406. R(on the application of X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65. Government Reports HC Debate, vol 315, col 543 (2 July 1998), Secretary of State for the Home Department, Mr Jack Straw. Read More