Freedom of Expression/Information

Question 1

Lord Bridge quote, A-G v Guardian

Answer 1

“Freedom of speech is always the first casualty under a totalitarian regime…censorship is the indispensable tool to regulate what the public may and may not know.”

Question 2

What are the four ways in which media outlets are regulated?

Answer 2

1. Licensing
2. Broadcasting Code (broadcast media)
3. PCC (print media)
4. Statutory Regulations on Ownership (for print media)

Question 3

What does scandalising the court involve?

Answer 3

• Any act “calculated to undermine the authority of the courts and public confidence in the administration of justice” (Chokolingo)
• The publication must cause a real risk that public confidence will be undermined but D need not intend this (Ahnee)

Question 4

Blackburn

Answer 4

Reasoned criticism of judicial decisions will not attract liability

Question 5

Sunday Times v UK

Answer 5

The HoL injunction was not a proportionate interference with the Art.10 right because it reflected an “absolute rule…that it was not permissible to prejudge issues in pending cases” but Art.10 could only be interfered with if necessary in the particular case

Question 6

MGN v A-G

Answer 6

The following factors must be taken into account when deciding if CoC Act is engaged -

1. How likely is it that the publication will come to the attention of a potential juror?
2. What would be the impact of the article on the average reader?
3. What is likely to be the residual impact on a juror at the time of trial, especially given the time lapse between publication and trial?

Question 7

Goodwin v UK

Answer 7

Disclosure orders in circumstances such as those in Morgan Grampian attached too much weight to employers’ interests relative to those served by maintaining the confidentiality of sources

Question 8

Ashworth v MGN

Answer 8

Courts must consider the “chilling effect” that disclosure orders can have on press freedom, pursuant to Art.10

Question 9

John v Express Newspapers

Answer 9

If less draconian steps were available but have not been taken, a disclosure order will not be granted because its necessity is not established

Question 10

Handyside v UK

Answer 10

A wide margin of appreciation is given to states in deciding what limits on free speech are necessary in the interests of public morality, but Art.10 includes the right to “shock, offence or disturb”

Question 11

Wainwright v Home Office

Answer 11

There is no independent tort of invasion of privacy known to English law

Question 12

Kaye v Robertson

Answer 12

The CoA lamented the failure of English law to effectively protect personal privacy

Question 13

What are the two requirements for a breach of confidence to be established?

Answer 13

1. Saltman Engineering – the information has the “necessary quality of confidence” about it, meaning it should not be widely available in the public domain
2. Stephens v Avery – the information is communicated on the basis that it is confidential so that revelation of that info would be unconscionable

Question 14

How did Spycatcher No.2 extent the ambit of the doctrine of breach of confidence?

Answer 14

The doctrine of BoC applies where information is acquired by a person who is held to have agreed that the info is confidential

Question 15

What takeaways do we have from Spycatcher No.2 regarding

1. Injunctions to restrain confidential information
2. Freedom of speech?

Answer 15

1. If the information is already in the public domain such that it is no longer confidential, there is no grounds for an injunction since no further damage to the public interest could possibly be caused
2. There is a continuing public interest in freedom of speech which can be defeated only by a strong countervailing public interest

Question 16

When is information regarding a public figure private?

Answer 16

1. Campbell v MGN – information is private if D knows or ought to know that C can reasonably expect his privacy to be respected
2. McKennit v Ash – information is not private if widely available in the public domain but revelation of one aspect of a person’s private life does not mean the rest of it is “fair game”

Question 17

Campbell v MGN (public interest in disclosure) qualification?

Answer 17

if there is a conflicting and weightier legitimate interest pointing towards publication the court will not protect the privacy of information

Qualified by Mosley v News Group Newspapers – “titillation for its own sake” does not engage any of the justifications in Art.8(2)

Question 18

o Peck v UK

Answer 18

If C is photographed doing something in public and the image is viewed to an extent far exceeding any exposure to a passerby or security observation and to a degree surpassing that which C could have foreseen, disclosure breaches Art.8

Question 19

Von Hannover

Answer 19

If C has a legitimate expectation that her privacy would be respected in relation to everyday aspects of her domestic life, disclosure of those aspects will breach Art.8, especially if there is no public interest in publication

Question 20

Kennedy v Charity Commissioner - Art.10

Answer 20

Art.10 does not give a right to access information which the holder does not wish to disclose (although if it did, it would add nothing to the common law presumption of openness)

Question 21

Kennedy v Charity Commisioner - FOIA

Answer 21

If an absolute exemption in the FOIA applies, the public authority cannot be compelled to disclose that information though it may lawfully do so if it is not restricted by law