Freedom of Expression Cases Flashcards
Lingens v Austria (1986)
ECHR Art 10
• Mr. L edited magazine in Austria, published articles accusing chancellor of protecting former members of the SS, who themselves were active in politics
• Special Protection under Article 10 for the press. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance
Bladet, Tromso and Stensaas v Norway (1999)
ECHR Art 10
• Press fulfills an essential function in a democracy
• It is a “public watchdog” in imparting information of serious public concern
Attorney-General v Jonathan Cape (1976)
ECHR Art 10
o Richard Crossman was a member of government (Minister), kept diary during his time as cabinet minister
• Wanted to publish diary entries in a book
• Dies, but widow and friends want to continuing with publishing
o Publisher Jonathan Cape agrees
o Attorney General sought restraint on publication because believed it contained information about British government which should remain confidential (due to doctrine of collective responsibility)
• Also, Breach of Confidence, does this apply to ministers?
o Court held that it could be published, refused injunction
• In principle, there is a principle of Breach of Confidence which applies to Ministers, but
• ‘The Attorney-General must show:
o that such publication would be a breach of confidence;
o that the public interest requires that the publication be restrained, and
o that there are no other facts of the public interest contradictory of and more compelling than that relied upon.
• Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.’ Per Lord Widgery LCJ
• Issue of timing was very important
• 10 years had passed since diary entries were made
o Was unlikely that their publication would inhibit free discussion in the cabinet of the day
Attorney-General v Guardian Newspapers (No 2) (1990) (“Spycatcher Case”)
ECHR Art 10
o Retired UK secret service employee was to publish his memoires in Australia
• Details of secret service and allegations of misconduct, including rumors intended to undermine current government
o Attorney General sought to bring proceedings in Australian court to prevent publishing
• Lost
o During court case in Australia, Guardian newspaper in UK wanted to report on details of case in UK
• AG took to court in UK -> felt that this would lead to revealing what’s in the book
• Held not allowed to report on case
o Meanwhile, book published in US, some copies being made available in UK
o After this ^^ court held
• Principle of Confidentiality/ Duty of Confidence exists, but only applies to information that is confidential
• In particular, once it has entered what is usually called the public domain then, as a general rule, the principle of confidentiality can have no application to it”. Per Lord Goff
• In this case, so much of the information had ended up in the public domain that the principle of confidence didn’t apply
• TF injunction not granted
AG v Blake (2001)
Official Secrets Act 1989
• breach of s. 1(1) by ex-intelligence member on publication of autobiography revealing secrets of the service
• criminal offence even though information no longer confidential
R v Shayler (2002)
Official Secrets Act 1989
• The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the defence that the disclosures had been made by him in the public or national interest was available to him on such a prosecution
• Defendant believed a public interest defence could be read into the act, otherwise is a serious encroachment on freedom of expression
• Court said NO
o Just because there’s no public interest defence doesn’t mean there’s absolutely no disclosure -> internal mechanisms in act which could allow disclosure if circumstances met
von Hannover v Germany (2005)
ECHR Art 8/ Art 10
• Applicant is Princess Caroline von Hannover of Monaco
• Seeks injunction on photos published of her in German newspapers
• Germany grants injunction on those photos of her with her children
• But she must tolerate the publication of the other photos of her going out and about in her public life because she’s a public figure
• Has German court infringed on her article 8 right to private life?
• Privacy can include aspects of an individual’s life where they’re not acting in an official capacity including being photographed in public
• Privacy and expression must be balanced because they have equal status under convention
• Held privacy espeicially important in this case; is a violation of art. 8 because media’s conduct breached her legitimate expectation that her day-to-day private life be kept private
o Public had no legitimate interest
• Where the purpose of the expression is of low value, i.e. not a contribution to a debate of public interest but is mere gossip then interferences of privacy through expression must be strictly construed
von Hannover v Germany (No 2) (2008)
ECHR Art 8/ Art 10
• Photo of the princess on holiday accompanied with article concerning her father’s illness
• The Court found that Prince Rainier’s illness and the conduct of the members of his family at the time qualified as an event of contemporary society on which the magazines were entitled to report and to include the photograph to support and illustrate the information being conveyed.
• The Court accepted that the photograph, considered in the light of the article, did at least to some degree contribute to a debate of general interest.
• Did German denial of injunction violate right to privacy?
• Strasbourg says NO
o Prince’s illness is a matter of public interest
Re S (A Child) (Identification: Restrictions on Publication) (2003)
ECHR Art 8/ Art 10
• Mother due to stand trial in criminal case for murdering one of her sons
• Her other son petitioned court that details of woman and son not published, to protect his own privacy
• Approach to be taken? Held: necessary to balance rights against each other; no ranking of rights
• Injunction request denied
o In the public interest
o Many details already published/ in the public sphere
• Lord Teyn:
o Case established the balancing test starting from a position of presumptive equality of expression and privacy
o Comparative analysis of importance of specific rights being claimed necessary
• I.e. whether expression interest is strong or weak
o Justifications for interfering with each right must be taken into account
o Proportionality test must be applied to both rights
Campbell v MGN (2004)
ECHR Art 8/ Art 10
• Naomi Campbell= supermodel
• Had publically stated that she didn’t do drugs
o Newspaper published pics of her leaving rehab and details of her treatment
o 5 things revealed by newspaper:
• 1. The fact that Campbell was a drug addict
• 2. The fact that she was receiving treatment
• 3. That treatment was provided by Narcotics Anonymous
• 4. Details of the treatment she was receiving
• 5. Information contained in the photo
• Campbell said the info taken together = breach of privacy, sought damages from newspaper
• Held:
• There is a right in English law to privacy (Development of a new tort of misuse of private information)
o Applies between individuals, not just between individuals and state
• “The values in Articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper.”
• “Rights to privacy and expression have equal status under the Convention, therefore where both are engaged they must be balanced”. Per Lord Hope
•
• HoL classified all 5 pieces of information as private information
o Issues 1 and 2:
• When talking to the media Miss Campbell went out of her way to say that unlike many fashion models, she did not take drugs.
• By repeatedly making these assertions in public Miss Campbell could no longer have a reasonable expectation that this part of her life could remain private.
• Where a public figure chooses to present a false image and make untrue pronouncements about his or her life, the press will normally be entitled to put the record straight”
• Held: newspapers could publish this info
• On balance, freedom of expression allows this, despite breach of privacy
o Issues 3, 4, and 5
• On issue (3) and (4):
• Information that Campbell was receiving treatment specifically at Narcotics Anonymous? This was a disclosure of an unremarkable nature
• Issue (5): The photos contained private info, were taken surreptitiously.
• Hale:
• Difference between photos of NC when “she pops out to the shops for a bottle of milk” and photos of her leaving an NA meeting.
• Key aspect of the proportionality assessment ‘the nature of the speech’. Political speech, artistic expression, speech keeping those in elected office accountable, deserve higher protection than the speech in a tabloid
• Violation of right to privacy outweighs freedom of expression for press
Mosley v MGN (2008)
ECHR Art 8/ Art 10
• Mr. M= president of Formula 1
• Filmed engaging in S&M by a newspaper
o Newspaper said there was also a Nazi element
• Newspaper publishes
• Mr. M invoked right to privacy
o Denied Nazi element, but not that sex acts took place
• Newspaper said public had right to know
• Held:
• Clandestine recording of sexual activity on private property= right to privacy
o No public interest in publish
• “Titillation for it’s own sake is not a private interest reason”
Ferdinand v MGN (2011)
ECHR Art 8/ Art 10
• Newspaper publishes information that former footballer/current football captain having affair, despite having said that he was no longer living a wild life
• Alleged that he ended the affair because he’s afraid of losing job
• Court agrees this is a matter of privacy -> previous reckless behavior doesn’t automatically disqualify an expectation of privacy for sexual relations
• But: freedom of expression outweighed his right to privacy
o Had claimed publically and in his autobiography that he was a changed man
o Was in public interest due to his position as a role model
PJS v News Group Newspapers Ltd (2016)
ECHR Art 8/ Art 10
• An injunction was sought to prevent the publication of names of a celebrity couple allegedly involved in infidelity. The Supreme Court granted an injunction, even though the identity of the couple had been revealed in many other countries.
• Newspapers in Eng/Wales say injunction no longer valid because US and Canadian news sources had already published the info
• UKSC said they’d keep injunction in place, even though ID of people had already been published in other countries
• No real public interest in publishing these details
o Just celebrity gossip
