FREEDOM OF EXPRESSION – ARTICLE 10 EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 – OFCOM BROADCASTING CODE rr2.1 @ 2.3 – R(on the application of John Gaunt) v Office of Communications [2011] EWCA civ 693

The appellant, a provocative radio chat show presenter, who had been in care as a child, conducted an aggressive and intemperate interview with a local authority councillor over the local authority’s decision to ban smokers from becoming foster parents. The interview started moderately but degenerated into a slanging match with the appellant using phrases about the councillor such as “Nazi”, “health Nazi” and “ignorant pig”.  Subsequently G twice apologized on air, but was suspended and then summarily dismissed by his employer. OFCOM found that there had been a breach of the OFCOM Broadcasting Code rr2.1 and 2.3. The appellant sought to have this decision quashed on the grounds that it was a disproportionate breach of his rights of freedom of expression under Article 10 ECHR. The Court of Appeal rejected an appeal against a first instance decision declining to quash the OFCOM decision. Lord Neuberger MR set out nine principles (@ paras 26-27) in deciding whether a restriction on the right of freedom of expression was justified:

“26. First, where an applicant contends that his article 10 rights have been infringed by the ruling of a national tribunal, the need for the restriction on freedom of expression “must be established convincingly” - Janowski v Poland (2000) 9EHRR 705, para 30(i). Secondly, the question to be considered is whether the interference with the applicant’s Article 10 rights was “proportionate to the legitimate aim pursued” – Janowski 29 EHRR 705, para 30(iii). Thirdly, in deciding that issue, a margin of appreciation is to be accorded to the national authorities – ibid, para 30(ii). Fourthly, in deciding whether a national tribunal went beyond the margin of appreciation, the severity of the sanction imposed on the applicant is potentially relevant – ibid, para 35, Malisiewicz-Gasior v Poland (2007) 45 EHRR 21, para 68, Perna v Italy (2004) 39 EHRR 28, para 39. 27.Fifthly, in deciding whether any interference with freedom of expression falls foul of Article 10, the court “will have particular regard to the words used …, the context in which they were made public and the case as a whole” - Fuentes Bobo v Spain (2001) 31 EHRR 50, para 46. Sixthly, the latitude to be accorded to someone who insults another in public is greater if the insulting words are used in the context of “an open discussion of matters of public concern” or in the context of “freedom of the press”, than if the words are used by “a private individual” – Janowski 29 EHRR 705, para 32. Seventhly, there is a distinction to be drawn between “harsh words” which constitute “a gratuitous personal attack” and those which form “part of a political debate” – Malisiewicz-Gasior 45 EHRR 21, para 66, Gorelishvili v Georgia (2009) EHRR 36, para 40, and see Oberschlick v Austria (No 1) (1995) 19 EHRR 389, paras 58-60 and Lindon v France (2008) 46 EHRR 35, paras 56-7. Eighthly, the fact that there is no “possibility of reformulating, perfecting or retracting” the statement before publication is a relevant factor – Fuentes Bobo 31 EHRR 50, para 46. Ninthly, at least “in the context of religious opinions and beliefs” it is legitimate to “include[e] an obligation to avoid as far as possible expressions that are gratuitously offensive to others … and which … do not contribute to any form of public debate capable of furthering progress in human affairs” – Gunduz v Turkey (2005) 41 EHRR 5, para 37.”

European Convention on Human Rights, 1950 -  Article 10 - Human Rights Act 1998 - s4 - Communications Act 2003 – ss 319(2)(g) - 321(2) – R (on application of Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, 12 March 2008.

An animal welfare group, Animal Defenders International, a public-interest non-profit organization who sought the suppression, by lawful means, of all forms of animal cruelty and the conservation and protection of animals and their environment, sought judicial review of a decision by the Broadcast Advertising Clearance Centre (BACC) refusing to broadcast their advertisement 'My Mate's a Primate' (attacking the use of chimps in zoos and circuses). BACC took that the view that the advertisement was prohibited under s321 CA 2003, in particular that the AID was a body 'whose objects are wholly or mainly of a political nature' (s321(2)(a)) and that the advertisement was 'directed towards a political end' (s321(2)(b)), 'influencing public opinion on a matter..of public controversy' (s321(3)(f)) and 'promoting the interests of a …group of persons organized…for political ends' (s321(3)(g). ADI argued that the ban was incompatible with Article 10 of the European Convention on Human Rights 1950 and sought a declaration of incompatibility under s4 HRA1998. ADI also relied heavily on the ECtHR decision in VgT Verein gegen Tierfabriken v Switzerland (2001) 34 EHRR 159 (holding that a ban on an advertisement attacking use of factory farming methods in rearing pigs and encouraging vegetarianism was contrary to Article 10 ECHR). The ban on political advertising in the UK has existed since the introduction of commercial television by Television Act 1954 and is in part a reaction to large scale political advertising in US which it is felt favours large scale and wealthy political groups – instead in the UK the party political broadcast system has been used. The House of Lords upheld the ban as a permissible balancing of the weight of freedom of expression and voter equality – it was a balanced and proportionate response allowing bodies to put their cases across in other ways (the press and the Internet) but not one which greatly risked distorting the public debate in favour of the rich. The VgT case was regarded as fact specific and confined to its own facts and the Court of Appeal decision in R v Radio Authority, ex parte Bull [1996] QB 169 affirmed. In particular their Lordships rejected an attempt to draw a distinction between direct political party and election and advertising and so-called 'social advocacy' advertising and preferred the approach of the ECtHR in Murphy v Ireland (2003) 38 EHRR 212 (ban on television and radio religious advertising in Irish Republic upheld).

Juppala v. Finland (App. No. 18620/03, ECtHR)

This case involved the reporting of suspected child abuse by a concerned grandmother, who had noticed extensive bruising to her (then) three year-old grandson. A doctor concurred with this opinion, although the father contended that the injuries had been sustained in an innocent fall. An investigation initiated by the applicant ultimately concluded that there was insufficient evidence of abuse, and she was later held liable for a minor defamation offence under Finnish law and ordered to pay 10,000 Marks. The Applicant appealed to the European Court of Human Rights in the basis that her liability presented a chilling effect upon reporting genuine concerns for child safety, especially where such remarks were made to a doctor bound by professional secrecy. The Court found a breach of Article 10. Where an applicant acts in good faith in what they genuinely believe to be the best interests of the child, they should not be influenced by fear of prosecution or civil liability in deciding whether and when to communicate such concerns to health care professionals or social services.

TV Vest AS & Rogaland Pensjionistparty v. Norway (App. No. 21132/05, ECtHR)

A minor Norwegian political party representing elder interests purchased advertising time from a regional television company in the run-up to local elections, for which the television company was ultimately fined for a violation of a national prohibition on political advertising. TV Vest did not dispute a breach of the rules, but argued that the rules themselves constituted a violation of Article 10. A rare intervention to the case came from the UK and Ireland, arguing respectively that a blanket ban ensured a level playing field in electioneering (UK) and that such bans provided legal certainty and was justifiable under Article 10 (Ireland). Nevertheless, the European Court of Human Rights ruled that notwithstanding the margin of appreciation and genuine issues of public interest engaged, the ban contravened Article 10. The prohibition was considered disproportionate given that the party itself was essentially denied recourse to general publicity afforded to major parties through edited coverage of their activities.

Vajani v. Hungary (App. No. 33629/06, ECtHR)

A participant at a demonstration, who was also a senior member of a minor political party, was convicted of the offence of using a totalitarian symbol by wearing a badge signifying a former Communist party logo. Following a referral to the ECJ – which was ultimately rejected on the basis of a lack of jurisdiction – the European Court of Human Rights considered the conviction of the applicant to contravene Article 10. While acknowledging that former regimes had left “a serious scar in the mind and heart of Europe”, the Hungarian authorities had failed to show that wearing the badge was tantamount to espousing totalitarian views. Moreover, given that the applicant’s political group had no known totalitarian aspirations, it could not be considered dangerous propaganda.

Alitha Publishing Company & Constantinides v. Cyprus (App. No. 17550/03)

A number of critical articles were written about the former Minister of Defence, alleging serious gambling habits and incompetence by virtue of the expensive purchase of defective armaments supposedly bought from fellow gambling contacts. The national courts found that limited research had been undertaken to substantiate grave claims and that there was no proof for the allegations. Moreover, the Supreme Court of Cyprus – expressly endorsing Reynolds v. Times Newspapers (2001) AC 127 – found that responsible journalism had not been made out. In rejecting the application, the European Court of Human Rights reiterated that a duty to act in good faith in order to provide accurate and reliable information was implicit in the protection of Article 10, which would apply equally in matters of public interest. While not wishing to revisit the merits of the case, the Court concurred that there were no reasons to dismiss the findings of the domestic courts that the applicants had acted in a cavalier and malicious capacity.

Stoll v. Switzerland (App. No. 69698/01)

The leak of official documents in relation to a key issue in international relations was considered serious by the European Court of Human Rights. In 1996, during tense negotiations over the repatriation to Israel of unclaimed assets held in Swiss banks by those presumed murdered during the Holocaust, a highly sensitive memo sent from the Swiss Ambassador to the US to the head of the negotiating team containing a number of unfortunate and insensitive comments was leaked and subsequently published. Despite a furore created by the leak and damage sustained to Switzerland’s negotiating stance, the European Court of Human Rights considered the journalist’s conduct to be at the lower end of the scale of culpability. An appeal to the Federal Court was rejected on the basis that the conviction served as a reminder pour encourager les autres against leaks of sensitive state information. Submissions from France and Slovakia also urged the Grand Chamber to take a strong line against such leaks, noting a clear distinction between the publication of information exposing individual misfeasance in public office and details of highly sensitive negotiating positions which might contain a striking degree of candour. In rejecting the application, the Court nonetheless ruled that while the confidentiality of a diplomatic report is “justified in principle, it cannot be protected at any price” and that effectively stifling all public debate on foreign policy is unacceptable. While noting the shelf-life of news as a perishable commodity, it was nevertheless considered that the tone and language used by the reporter was unjustified and defeated his appeal under Article 10.

Open Justice – R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] WCA Civ 65, 10/2/2010.

The treatment by the US authorities of terrorist suspects taken to the controversial Guantanamo Bay detention centre in Cuba has been the subject of high controversy and fundamental issues as to the balance of human rights and the fight against terrorism, and if it is ever permissible to use torture as an interrogation method. This case concerned whether certain disclosures by the US authorities to the UK security services of the treatment applied to the claimant who was seeking to defend himself against terrorist charges in the US and was arguing that he had been subject to torture. The Foreign Secretary sought a judgment by the court which would be redacted – omitting what he claimed to be highly sensitive information, the publication of which could damage relations, now and for the future, between the US and UK security services. The Court declined to remove the disputed paragraphs from the judgment on the grounds that a sufficient case had not been made out for redaction. The court stressed the important considerations of open justice, democratic accountability, and freedom of expression even if this resulted in a possibly disadvantageous re-arrangement of information sharing arrangements between security services.

Human Rights Act 1998 s12 – Extension of without notice order – confidential report – failure to follow procedures – Doncaster Metropolitan BC v BBC [2010] EWHC 53(QB)

Section 12 of the Human Rights Act 1998 requires the court to pay particular attention to issues of freedom of expression in regard to the award of without notice or interim (interlocutory) injunctions in disputes involving the media. In this case a without notice order had been obtained preventing the BBC from publishing any information relating to a Serious Case Review concerning serious offences committed by two 11 year old boys. Doncaster MBC has had an allegedly very poor reputation in recent times in connection with its conduct of child care problems in the borough. There had been extensive reporting of the offences by the boys in public forums already, subject to the normal restrictions imposed in relation to the reporting of criminal offences involving juveniles. The Council applied for an extension of the injunction which was refused. The judge was very critical of the Council in that they had not followed the appropriate procedures set out in the Civil Procedure Rules PD 25. There was nothing in the proposed programme about the criminal offences to suggest that the BBC was intending to publish confidential and private information and the applicant had failed to draw the judge’s attention to s12 HRA 1998. The Council had also failed to provide the BBC as required with a copy of the draft order. Fundamentally the application had failed to identify the information said to be private or confidential and the evidence of a threat to publish.