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ABSTRACT
This article explores the right-wing tendency to parade the creation of greater protection for free speech as a key basis for revision or repeal of the Human Rights Act. To illustrate that point it takes as a case study the potential change to the balance to be struck between Articles 10 and 8 under the proposed Bill of Rights in the context of the tort of misuse of private information. Given the apparently flagship nature of the provisions aimed at such a re-balancing, and the support it enjoys in particular newspapers, it appears probable that they will re-emerge in some form. The notion that judges have disregarded media freedom and usurped the function of Parliament in creating a European-style privacy law appears to be embedded in right-wing thinking and is therefore unlikely to be discarded. It is a trend that will probably continue, whatever the fate of this particular instrument.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Ministry of Justice Human Rights Act Reform: A Modern Bill of Rights, A consultation to reform the Human Rights Act 1998 (Cm 588, 2021) Foreword and Introduction, 3–7.
2 Ibid para 205.
3 Ibid para 217, specifically Question 5. Re privacy, see n 19 below.
4 Ministry of Justice Human Rights Act Reform: A modern Bill of Rights, Consultation Response (Cm 704, 2022) 3–5 and ch 1. In fact, 80–90% of the respondents rejected the proposed changes as to changing the balance between Articles 8 and 10, in order to favour Article 10.
5 Ministry of Justice and Dominic Raab, ‘Press release: Bill of Rights to strengthen freedom of speech and curb bogus human rights claims’ (GOV.UK, 22 June 2022) <https://www.gov.uk/government/news/bill-of-rights-to-strengthen-freedom-of-speech-and-curb-bogus-human-rights-claims>. Re ‘parts of the media’, see e.g. an article by the Daily Mail that stated: ‘Ahead of the Bill's publication, Mr Raab had hailed his measures as a 'strong enhancement of free speech', stopping the courts from ‘introducing Continental-style privacy laws by the back door’: G Heffer and D Barrett, ‘Government “at risk of losing public confidence” in immigration controls, warns Dominic Raab as he unveils new Bill of Rights to 'restore a healthy dose of common sense' to Britain's justice system’, The Daily Mail (22 June 2022) <https://www.dailymail.co.uk/news/article-10942789/Dominic-Raab-unveils-new-Bill-Rights-restore-healthy-dose-common-sense-justice-system.html> accessed 8 November 2022. The article stated: ‘Ahead of the Bill's publication, Mr Raab had hailed his measures as a 'strong enhancement of free speech', stopping the courts from ‘introducing Continental-style privacy laws by the back door’
6 Justice Committee Oral evidence: The work of the Lord Chancellor (HC 883, 22 November 2022) Q104.
7 See e.g. Tammer v Estonia App no. 41205/98, ECHR 2001-I; ML v Slovakia App no. 34159/17 (ECtHR, 14 January 2022) (discussed below).
8 The BoR was withdrawn from Parliament on 7 September 2022: see e.g. J Elgot ‘Liz Truss halts Dominic Raab’s bill of rights plan’ The Guardian (7 September 2022) <https://www.theguardian.com/law/2022/sep/07/liz-truss-halts-dominic-raab-bill-of-rights-plan>. Raab was appointed Secretary of State for Justice on 25 Oct 2022: see ‘Ministerial role: Lord Chancellor and Secretary of State for Justice’ (GOV.UK) < https://www.gov.uk/government/ministers/secretary-of-state-for-justice>. Raab is also Deputy Prime Minister, Lord Chancellor.
9 See: ‘Dominic Raab to bring back British Bill of Rights in bid to curb migrant crossings’ ITV News (6 November 2022) <https://www.itv.com/news/2022-11-06/raab-to-bring-back-british-bill-of-rights-in-bid-to-curb-migrant-crossings> accessed 8 November 2022. But still, in March 2023, it awaits its Second reading.
10 See: ‘British Bill of Rights’ (Conservatives) <https://www.suellabraverman.co.uk/british-bill-rights>. In a speech to the Policy Exchange thinktank, she argued ‘there is a “serious risk that the fight for rights undermines democracy”, saying the UK now had “a ‘rights culture’ in a way that did not exist prior to 1998”, when the Human Rights Act was passed’: P Walker ‘UK must curb influence of European human rights rules, says Braverman’ The Guardian (10 August 2022) <https://www.theguardian.com/law/2022/aug/10/uk-must-curb-influence-of-european-human-rights-rules-says-suella-braverman> accessed 8 November 2022. Rishi Sunak delivered his first speech on 25 October 2022: ‘Rishi Sunak's first speech as Prime Minister: 25 October 2022’ (GOV.UK, 25 October 2022) <https://www.gov.uk/government/speeches/prime-minister-rishi-sunaks-statement-25-october-2022>.
11 In 2016, he voted to repeal the Human Rights Act in favour of a British Bill of Rights: HC Deb 26 May 2016, vol 611, cols 732, 799–803. In 2021 he voted against addressing incompatibilities with ECHR found by the courts: HC Deb 19 May 2021, vol 695, cols 812 and 816.
12 See: D Barrett ‘Landmark law to wage war on woke: Free speech will be “trump card” in new legislation that replaces Human Rights Act’ The Daily Mail (11 May 2022) <https://www.dailymail.co.uk/news/article-10803431> accessed 26 February 2023.
13 Entitled ‘It’s Time for Action’, that manifesto made the promise to ‘review’ the HRA: Conservative Party ‘It’s Time For Action: Conservative Election Manifesto 2005’, 22; but the 2010 manifesto expressly promised to repeal the HRA: Conservative Party ‘Invitation to Join the Government of Britain: The Conservative Manifesto 2010’, 79. The 2019 manifesto with the Unionist Party only spoke of ‘updating’ the HRA: Conservative Party and Unionist Party ‘Get Brexit Done, Unleash Britain’s Potential: The Conservative and Unionist Party Manifesto 2019’, 50. The 2015 Manifesto stated ‘Because the work of the free press is so important we will offer explicit protection for the role of journalists via the British Bill of Rights’: Conservative Party ‘Strong Leadership, a Clear Economic Plan, a Brighter, More Secure Future: The Conservative Party Manifesto 2015, 42. The determination to ‘scrap’ the HRA and introduce the BoR was reiterated at pages 60 and 73.
14 See: J Croft ‘Revived Bill of Rights faces opposition in both Houses of Parliament’ The Financial Times (20 November 2022) <https://www.ft.com/content/e552daa6-d352-4dff-96ad-02a3a37c1ae7>. The article gives the examples of Sir Bob Neill, Chair of the parliamentary justice committee, and Sir Robert Buckland, ex-Justice Secretary, who have expressed concerns about the Bill in its current form.
15 That position was espoused by Braverman. See A Forrest, ‘Suella Braverman sparks new government row after calling for UK to quit ECHR; Home Secretary slapped down for “personal views” on European Convention on Human Rights’ The Independent (5 October 2022) <https://www.independent.co.uk/news/uk/politics/suella-braverman-european-convention-human-rights-b2195809.html> accessed 8 November 2022.
16 See K Donaldson, ‘Sunak says “All options on Table” for UK withdrawal from ECHR’ Bloomberg (16 June 2022) <https://www.bloomberg.com/news/articles/2022-06-16/sunak-says-all-options-on-table-for-uk-withdrawal-from-echr> accessed 8 November 2022.
17 Under the so-called Rule 39 measure. See, for example: M Boycott-Owen, ‘Suella Braverman calls for UK to leave “political” ECHR in wake of Rwanda ruling: The Attorney General said that it is necessary to get on with delivering Brexit’ The Telegraph (10 July 2022) <https://www.telegraph.co.uk/politics/2022/07/10/suella-braverman-calls-uk-leave-political-echr-wake-rwanda-ruling/> accessed 8 November 2022.
18 See Ministry of Justice Human Rights Act Reform: A modern Bill of Rights, Consultation Response (n 4), the Foreword states at page 4 that: ‘we intend to remain a state party to the European Convention on Human Rights’. See J Elgot, ‘Tory MPs to push for UK exit from European Convention on human rights’ The Guardian (5 February 2023) <https://www.theguardian.com/politics/2023/feb/05/tory-mps-to-push-for-uk-exit-from-european-convention-of-human-rights> accessed 10 February 2023.
19 Ministry of Justice Human Rights Act Reform: A Modern Bill of Rights, A consultation to reform the Human Rights Act 1998 (n 1) para 206. 630 respondents took that view. See also, para 213, Qs 4–7.
20 Ministry of Justice Human Rights Act Reform: A modern Bill of Rights, Consultation Response (n 4) para 41.
21 The Consultation Paper foreshadowed such repeal: ‘We have witnessed a proliferation of human rights claims under the Human Rights Act, not all of which merit court time and public resources’: Ministry of Justice Human Rights Act Reform: A Modern Bill of Rights, A consultation to reform the Human Rights Act 1998 (n 1) para 220.
22 Ministry of Justice Human Rights Act Reform: A Modern Bill of Rights, A consultation to reform the Human Rights Act 1998 (n 1) para, 114; Ministry of Justice Human Rights Act Reform: A modern Bill of Rights, Consultation Response (n 4) ch 1. That was despite the fact that 1,052 respondents (56%) considered that there should be no change from the current framework.
23 Bill of Rights HC Bill (2022–2023) [117], cl 3(3)(b): ‘ … subject to paragraph (a), [a court] may adopt an interpretation of the right that diverges from Strasbourg jurisprudence … ’.
24 Ibid, referencing subsection (3)(a).
25 [2021] EWCA Civ 1810, [2022] 4 WLR 81.
26 HRH Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch), [2021] 4 WLR 35 [95]; HRH Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA (n 25) [95] and [104]. The balancing freedom of expression claim was also readily dismissed by the High Court at first instance: see [128].
27 I Wilson, ‘In defence of privacy and the judiciary: the fall-out from HRH the Duchess of Sussex v Associated Newspapers’ (Inforrm’s Blog, 8 February 2022) <https://inforrm.org/2022/02/08/in-defence-of-privacy-and-the-judiciary-the-fall-out-from-hrh-the-duchess-of-sussex-v-associated-newspapers-iain-wilson/>. See also n 36 and associated discussion below.
28 ML v Slovakia (n 7). It was referenced at footnote 131 of the consultation paper, and associated text: Ministry of Justice Human Rights Act Reform: A Modern Bill of Rights, A consultation to reform the Human Rights Act 1998 (n1) 62.
29 ML v Slovakia (n 7) [39].
30 Ibid [53].
31 Ibid [53].
32 Ibid [53]. See also Armonienė v Lithuania [2009] EMLR 7, [39].
33 ML v Slovakia (n 7)[53].
34 Ibid [34]–[36], [47] [55].
35 See I Wilson (n 27).
36 See I Wilson (n 27); Robert Mendick and Hannah Furness, ‘Fears raised over judge-led privacy laws after Meghan, Duchess of Sussex’s legal victory’ The Telegraph (2 December 2021) <https://www.telegraph.co.uk/royal-family/2021/12/02/calls-parliamentary-scrutiny-privacy-laws-meghan-duchess-sussexs/>; D Barrett, ‘New freedom of speech reforms to be revealed to tackle “wokery and political correctness” amid fears judges are “drawing up privacy laws by the back door”’ The Mail (14 December 2021) <https://www.dailymail.co.uk/news/article-10306323/New-freedom-speech-reforms-revealed-amid-controversial-rulings-liberal-judges.html>.
37 [2022] UKSC 5, [2022] AC 1158.
38 Ministry of Justice Human Rights Act Reform: A Modern Bill of Rights, A consultation to reform the Human Rights Act 1998 (n 1) para 204.
39 For example, Article 10 as interpreted at Strasbourg covers silent forms of conduct; see e.g. Tatar and Faber v Hungary App No 40721/08 (ECtHR, 24 October 2012) and (limited) access to information: Magyar Helsinki Bizottság v Hungary App no 18030/11 (ECtHR, 8 November 2016). See also, AAA v Associated Newspapers Ltd [2013] EWCA Civ 554, as well as n 65 and associated text below.
40 See Ministry of Justice Human Rights Act Reform: A modern Bill of Rights, Consultation Response (n 4) 4–5.
41 PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081 [51]; Bloomberg v ZXC (n 37). At paragraph [46] of Bloomberg, the Supreme Court also noted with approval that in Murray v Express Newspapers plc [2008] EWCA Civ 446, [2209] Ch 481, Sir Anthony Clarke MR had ‘helpfully summarised the principles stated by Lord Nicholls in Campbell at para 24 “ … (i) The right to freedom of expression enshrined in article 10 … and the right to respect for a person’s privacy enshrined in article 8 are vitally important rights … .neither has precedence over the other”’. See also Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 [12], which was cited in Murray in support of the above summarised principle.
42 PJS (n 41); Re S (FC)(a child) [2004] UKHL 47, [2005] 1 AC 593; Campbell (n 41).
43 PJS (n 41) [24].
44 Campbell (n 41) [60] (Lord Hoffman). See also [29], where Lord Nicholls in that instance similarly found that disseminating information about the claimant’s attendance at Narcotics Anonymous meetings was of a ‘lower order’ than other forms of journalistic speech, such as political speech.
45 D Mead, ‘A socialised conceptualisation of individual privacy: a theoretical and empirical study of the notion of the “public” in MoPI cases’ (2017) 9(1) JML 100, 130.
46 See Ministry of Justice Human Rights Act Reform: A Modern Bill of Rights, A consultation to reform the Human Rights Act 1998 (n 1), in particular, where it is referenced at n 19 and the associated text.
47 Von Hannover v. Germany (no. 2) [GC] App no. 40660/08, 60641/08, ECHR 2012-I [95]–[113]; Axel Springer AG v. Germany [GC] App no. 39954/08, (ECtHR, 7 February 2012) [78]–[95]; Couderc and Hachette Filipacchi Associés v France [GC] App no. 40454/07, ECHR 2015-VII [83]–[93].
48 See e.g. G Phillipson, ‘Press freedom, the public interest and privacy’ in Andrew T Kenyon (ed), Comparative Defamation and Privacy Law (Cambridge University Press, 2016); H Fenwick and F Brimblecombe ‘Protecting private information in the digital era: making the most effective use of the availability of the actions under the GDPR/DPA and the tort of misuse of private information’ (2022) 73 NILQ 26.
49 Axel Springer AG (n 47) [55]: in principle the two rights are of equal weight.
50 In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] AC 173, at [31].
51 Counsel could also make the point that the court as a public authority has a duty under sections 12(1) and 34(1)(a) BoR – obviously replacing s6 HRA - not to act incompatibly with the rights. Treating Article 8 as presumptively unequal to Article 10 under section 4(1) could be viewed as failing to act compatibly with the Article, not only on the basis of Strasbourg’s interpretation, but on that of the Supreme Court in PJS (n 41) in particular. That might not, however, provide a very convincing argument since Article 8 is being applied, not disregarded; its presumptive parity with Article 10 does not appear from its face, but from the Strasbourg case-law discussed above, and under clause 3(3)(b) that case-law can be disregarded. Under section 3(1) the Supreme Court’s case-law, such as PJS, would be relevant but section 4(1) would have some impact in applying that case-law, meaning that the court’s interpretation of its duty as a public authority would depend on the argument canvassed here. Recourse to that duty would not therefore appear to add anything to the general argument as to the interpretation of section 4(1).
52 But, clearly, a finding of incompatibility does not necessarily mean that a court able to do so does issue a declaration: see R (on the application of Nicklinson and another) v Ministry of Justice [2014] UKSC 38, [2015] AC 657 [318].
53 The BoR Bill in its current form does not provide specifically for any reliance on e.g. US jurisprudence, although the Consultation Paper had contemplated doing so: see Ministry of Justice Human Rights Act Reform: A Modern Bill of Rights, A consultation to reform the Human Rights Act 1998 (n 1) para 217, Q5 which asked – ‘What guidance could we derive from other international models for protecting freedom of speech?’.
54 Such as Mills v News Group Newspapers Ltd [2001] EMLR 957, and impliedly accepted in Venables v News Group Newspapers Ltd [2001] EWHC 32, [2001] 2 WLR 1038.
55 The effect of Article 46 is briefly acknowledged in the BoR Bill in cl 25.
56 See: Phillipson ‘Press freedom, the public interest and privacy’ (n 48); Fenwick and Brimblecombe ‘Protecting private information in the digital era: making the most effective use of the availability of the actions under the GDPR/DPA and the tort of misuse of private information’ (n 48); H Fenwick and F Brimblecombe ‘Keeping control of personal information in the digital age: Efficacy and equivalence of tortious and GDPR/DPA remedial relief?’ (2022) 138 LQR 455.
57 See the later ‘footballer cases’, including Terry v Persons Unknown [2010] EWHC 119 (QB) [55]. The judge adverted to Terry’s portrayal of himself via the media as in some sense ‘reformed’. In Douglas v Hello! Ltd [2001] 2 WLR 992 the sale of the couple’s privacy (pictures of the wedding) to a different magazine, persuaded the Court that their privacy interest had been down-graded in relation to the rival magazine’s contentions. In Campbell (n 41), the House of Lords accepted somewhat uncritically that there was a public interest in correcting the false image that Campbell had previously portrayed to the media.
58 See: Ferdinand v MGN [2011] EWHC 2454 (QB); Terry and persons unknown (n 57).
59 A v B Plc [2002] 3 WLR 542.
60 These interpretations created for a period a reneging on the finding that Articles 8 and 10 have equal value (as found in Re S (FC) (A Child) (n 42) [17], Campbell (n 41) [29]); findings in Terry and persons unknown (n 57) and Ferdinand v MGN (n 59) implied that Article 10 may de facto take precedence over Article 8. That position was more clearly taken by the Court of Appeal in PJS (n 41), a position reminiscent of the English courts’ pre-HRA jurisprudence. But the notion that Article 10 has presumptive priority over Article 8 due to the HRA s 12(4) was eventually put very clearly to bed by the Supreme Court in PJS (n 41) [19]–[20], [33], [52].
61 [2015] NIQB 11; on appeal: CG v Facebook Ireland [2016] NICA 54.
62 See: F Schauer, Free Speech: A Philosophical Enquiry (Cambridge, Cambridge University Press 1982); H Fenwick and Gavin Phillipson, Media Freedom Under the Human Rights Act (Oxford, Oxford University Press 2006) 683ff; E Barendt, Freedom of Speech (2nd ed, Oxford, Oxford University Press 2007). See further: K Greenawalt, ‘Free speech justifications’ (1989) 89 Columbia Law Review 119, 143; V Blasi, ‘The Checking Value in First Amendment Theory’ (1977) 2 American Bar Foundation Research Journal 521. See also, for example: Éditions Plon (Societe) v France App no 58148/00, ECHR 2004-VI: significant political speech, although relating to an individual’s private life, was accorded full recognition under Article 10; see also: Campbell v MGN Ltd (n 41) [117]; Lingens v Austria, 8 July 1986, Series A no. 103 [41] and [42].
63 See in particular Campbell (n 41) [29]; PJS (n 41) [24], [34], [65], [78].
64 J Rowbottom ‘Will the Bill of Rights Bill enhance the protection of free speech?’ (Inforrm’s blog, 29 June 2022 <https://inforrm.org/2022/06/29/will-the-bill-of-rights-bill-enhance-the-protection-of-free-speech-jacob-rowbottom/>.
65 AAA v Associated Newspapers Ltd (n 39).
66 Ibid [13], [14], [16]; the paragraphs concerned the basis for maintaining the privacy of the information. In paragraphs [39] and [43] the Court of Appeal (referring to [118] of the first instance judgment: AAA v Associated Newspapers Ltd [2012] EWHC 2103 (QB)) refer to the issue of recklessness relevant to the father’s character and linked to his position in public office.
67 [2000] EWCA Civ J1221-14; [2001] QB 967, 998.
68 See PJS (n 41) [24]. See in particular the reference to PJS at n 43, and the footnote’s associated text. The decision in PJS was instead based on the virtually valueless nature of the speech. See also Bloomberg v ZXC (n 39).
69 See also the discussion re Campbell (n 41), and PJS (n 41) located at n 60 above.
70 [2018] EWHC 799 (QB), [2019] QB 344 [115], [132]. Similarly, in Google Spain SL v Agencia Española de protección de Datos [GC] Case C-131/12, (ECtHR, 13 May 2014), [2014] QB 1022 [81], [97] it was found that a similar balancing act would apply to the interpretation and application of the previous Directive.
71 Ministry of Justice Human Rights Act Reform: A Modern Bill of Rights, A consultation to reform the Human Rights Act 1998 (n 1), para 206.
Additional information
Notes on contributors
Helen Fenwick
Helen Fenwick, LLB, BA, is Professor of Law at Durham University Law School, and a Human Rights Academic Consultant to Doughty Street Chambers. She specialises in human rights, especially in relation to freedom of expression and the ECHR. She is author of Media Freedom under the Human Rights Act (OUP 2006, with G Phillipson); Volume 88A Fifth Edition, Halsbury's Laws of England new section ‘Rights and Freedoms' (2013); Civil Liberties and Human Rights (Routledge, 5th edn 2017). Recent journal articles include ‘Protecting free speech and academic freedom in universities' (with I Cram) (2018) 81(5) Modern Law Review 825-873; ‘Prevent, free speech, ‘extremism' and counter-terror interventions: exploring narratives about chilling expression in schools' [2020] Public Law 661-679, with D Fenwick; ‘Exploring narratives about ‘Cancel Culture' in UK educational/employment settings under the ECHR' 2022 in European Yearbook on Human Rights, P Czech, editor (2022); Vol 73 NILQ No AD1 26-73 (with F Brimblecombe) ‘Protecting private information in the digital era: making the most effective use of the availability of the actions under the GDPR/DPA and the tort of misuse of private information'; ‘Keeping Control of personal information in the digital age: efficacy and equivalence of tortious and GDPR/DPA relief’ 138 Law Quarterly Review Issue 3, July 2022, 455-479 (with F Brimblecombe).