Media And Human Rights Dissertation

A critical analysis of the effect of Article 8 and Article 10 of the European Convention on Human Rights on newspapers in the UK with an emphasis on libel laws

Abstract

This dissertation is a critical analysis of the effect of both Article 8 and Article 10 of the European Convention of Human Rights on the media in the UK with a special emphasis on the press and libel which has absorbed most of the advances the Human Rights Act enshrined into UK law in 1998. The hypothesis of this study is that although both rights have been absorbed into the UK neither appeared into a vacuum and furthermore they have not been absorbed with the equality which the rhetoric of the judiciary would suggest. There is a ‘continental drift towards privacy’ clearly prevailing in the UK and the effects are being most sharply felt by the press who are so often at the vanguard of free speech for themselves and freedom of expression for all. In no area can this be demonstrated more clearly than in the area of libel which has sought to strike a balancing exercise between the two rights. The libel laws are heavily stacked towards the individual and act as an obstacle to freedom of expression. This dissertation will carry out extensive secondary case research to establish the effects of convention arguments in the courts in libel actions and attempt to divine the future direction and analyse the detailed recommendations of the Coalition Government in the Draft Defamation Bill of 2011.

 

Introduction

 

The Human Rights Act 1998, now woven into the fabric of the British legal landscape, represents a sea change in the endless dance of death between freedom of expression and the right to privacy between the state and the media, paparazzi and celebrities, journalists and editors and now even between social networking employees and employers. But just how far has the UK come? That Britain, traditionally a country without any law of privacy[1], now has an anchor for the right to privacy and the freedom of expression in the European Convention on Human Rights can be partially attributed to a media which has, ironically, committed some of the gravest sins against privacy: for example taking pictures of the (then) retired actor Gordon Kaye in 1991 while he was recovering in hospital after sustaining severe head injuries[2]. The Court of Appeal ruled that there was no satisfactory legal remedy for what the judges admitted was a “monstrous invasion of privacy”:

 

“Any reasonable and fair-minded person hearing the facts which Glidewell L.J. has recited would in my judgment conclude that these defendants had wronged the plaintiff. I am therefore pleased to be persuaded that the plaintiff is able to establish, with sufficient strength to justify an interlocutory order, a cause of action against the defendants in malicious falsehood. Had he failed to establish any cause of action, we should of course have been powerless to act, however great our sympathy for the plaintiff and however strong our distaste for the defendants’ conduct. This case nonetheless highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens.”[3]

 

Bingham L.J uses the settled position in Germany to contrast the tortured reasoning that the British courts have had to apply to invasions of privacy for generations. The confusion of the court in Kaye is a good example of when overlap occurs between the various actions that UK law has developed to deal with issues of privacy. The plaintiff in Kaye argued four separate ways: Libel, malicious falsehood, trespass to the person and passing off. This can be contrasted against the position in France where strong privacy laws enshrined in the constitution inhibit free speech and allowed Francois Mitterand to conceal his illegitimate daughter until she reached the age of 19[4]. On the flipside of privacy, Britain has a very self congratulatory proud tradition of extolling the merits of free speech and the freedom of the press, a freedom, as Robertson forcefully argues, which was, prior to the Human Rights Act, a hollow concept that any government could detract from at whim[5]. As a corollary, privacy could be protected indirectly through the development of laws such as trespass and official secrets while freedom of speech could be eroded indiscriminately to bolster a state that was seeking to protect its own interests. Robertson observes on this paradox:

 

“’Freedom of the Press’ remained a potent phrase, but the fact that it was protected by unwritten convention rather than by a constitution meant that there was no external brake to stop Parliament and the courts moving to restrict it in particular ways, as the mood and temper of the times seemed to require. Britain remained a country where ‘everything is permitted which is not specifically prohibited’ but the specific prohibitions became much more numerous, because they never had to justify themselves against the standards set by Article 10.”[6]

 

The final sentence of Geoffrey Robertson’s observation suggests that article 10, now widely cited in the British courts and developed by an illustrious line of European jurisprudence from Strasbourg, is now a new standard and represents a paradigm shift. Although the Human Rights Act came into force in 1998 it is 1979 which marked the turning of the intellectual tide when the European Court of Human Rights delivered a devastating judgement against the British courts’ attempts to suppress the publication of a remarkable piece of investigative journalism which exposed the harmful effects of the drug Thalidomide.[7] Although, to a greater degree than article 8[8], article 10 is qualified[9] and subject to certain restrictions there is a further section in the Human Rights Act itself which demonstrates the importance of freedom of speech and which distinguishes the right from the right to privacy:

 

“(4) The court must have particular regard to the importance of the Convention right to freedom of expression”.[10]

 

It is crucial to note that s.12(4) does not give article 10 what is called “presumptive priority”[11] over other rights, most notably privacy, despite the judicial rhetoric and that individuals cannot currently bring a free-standing cause of action based on ECHR (newspapers are private bodies) but must instead “anchor” their claim to an existing common law action, such as breach of confidence: the Human Rights principle affect has been one of absorption of convention rights into existing common law actions rather than creating a new tort of privacy[12] . This dissertation will critically assess privacy in the UK and its’ interplay with freedom of expression both before and after the passing of the Human Rights Act in the UK in 1998 through the lens of the press: are they having to yield to privacy in article 8 and has the human rights act only had a modest impact? Or are they able to report fearlessly in the knowledge that article 10 will reinforce their position? The hypothesis of this study is that the Human Rights Act has had a huge impact on the competing rights although, considering the history and the development of breach of confidence, a framework for protecting privacy at common law already existed[13] and with regard to freedom of expression there is a long line of pre Human Rights  Act judicial dicta which has emphasised the importance of this right[14] although notably Robertson pours scorn on what he insists is purely rhetoric which obscures the fact there has been no generalised right of free expression since the Magna Carta[15]. In short the Human Rights Act and articles 8 and 10 did not step into a vacuum and must be analysed accordingly though it is debatable to what extent freedom of expression was protected in the UK prior to 1998. In determining how to balance the competing rights, however, the HRA has been vindicated in providing a framework although we are still a long way from a situation where the media can speak freely and in some areas, such as libel for example, the right to privacy is winning to the detriment of us all; the “chilling” effect on free speech still very much evident and there is no prospect of a thaw even with the promising Draft Defamation Bill in 2011[16].

 

The tortured history of privacy and free speech in the UK in chapter 1 will be analysed before examining both of the fundamental rights at stake in chapter 2. Chapter 3 will address the law of libel in the UK and secondary case research will be conducted into libel cases involving newspapers and the mediafrom 2008 to 2011. This chapter will also provide an exhaustive look at the latest case law in relation to libel including the cases of Mr.Justice Eady up to his very latest in 2011[17] as well as case studies of important libel cases including the seminal Max Mosley and the News of the World trial[18] which was Mr.Eady’s most high profile case and triggered a barrage of criticism. This chapter will conclude by determining whether the claim by Paul Dacre of the Daily Mail, that Mr.Justice Eady is responsible for eroding free speech, is true[19]. Chapter 4 looks at the position in France in order to extract any useful lessons for privacy reform in the UK while chapter 5 draws all the strands of this study together to assess the impact of the Human Rights Act, in the shape of articles 8 and 10, on privacy and free speech in the UK. The striking case of Wikileaks will also be examined in this chapter alongside the growth of the so-called “super injunction” as well as the much welcomed reforms of the coalition government[20]. Finally chapter 6 will provide recommendations for the future based on conclusions drawn from the previous five chapters. With the historic multitude of laws enhancing privacy the role of the human rights act in promoting freedom of speech is remarkably important and Robertson makes an inspired case for article 10:

 

“The Human Rights Act 1998…provides what previous governments, and generations of judges, have never believed politic to entrench either in statute or common law, namely a guarantee of freedom of expression, a promise that “speech” will have a presumption made in its favour by any court invited to suppress it. This covenant – which enters British law by way of the incorporation of Article 10 of the ECHR – reflects the core belief of the eighteenth century republican revolutions in France and America, adopted as an article of faith in modern Human Rights instruments, that freedom of speech is a good in itself, an essential pillar of democratic order. This is the free speech principle, which assumes that liberty is best secured by a system that protects utterances irrespective of their merit, because in a free market of ideas and opinions the good will triumph over the bad”[21].

 

This study will focus on the press as their struggle for free speech is a front in the battle for freedom of expression: the two are often conflated and it is the press, with its resources, who is often in the courtroom arguing for publication[22]. Thus there is no better prism through which to evaluate the impact of articles 8 and 10 of the ECHR as private individuals do not have the vast resources, since legal aid is not available, to initiate libel claims or contend with the costs of victory or defeat[23].

 

 

Chapter 1: Background and overview

A. A right to Privacy in the UK prior to 1998?

Privacy in the United Kingdom has never enjoyed the protection of statute and has remained an enigma that is referred to by convention rather than constitution[24].  Countries such as France[25], Germany[26] and America[27] have a more defined right to privacy and are often seen as providing more constitutional protection than Britain, with its’ unwritten constitution, ever has despite the levelling of the European playing field in the 21st century. The Younger Committee on Privacy met in 1972 to address this very question but the introduction of such a right was abandoned despite the committee recommending that “privacy requires additional protection”[28]. The Report followed the introduction of a Private Member’s Bill in the House of Commons that ultimately was rejected[29] and indeed there have been a few privacy Bills that have foundered in the House amid ideological ruins[30]. The influence of the report was very profound and indeed, in the words of Bradley & Ewing, was to “structure the debate for a generation”[31]. Yet it is a fallacy to say that there have been no laws that have addressed privacy to a degree. In terms of civil law: in surveillance there has been the law of trespass[32] and the regulation of interference with property[33]; in the field of private information there has been legislation to protect individual’s data[34] and also legislation for the public to have access to sensitive data held about them[35]; in the protection of trademarks, patents and copyright ideas and sensitive information are restricted from dissemination[36] as well as a whole smorgasbord of criminal laws, some ancient and obsolete[37], some common law and some statute, which have restrained newspapers[38]. The suite of laws, both criminal and civil, which enhance privacy often overlap and can influence the press although often indirectly as the anchor for a Convention Rights argument[39] which the court as a public authority under the Human Rights Act 1998 must act compatibly with[40]. The most relevant action for privacy matters in relation to the media is breach of confidence which many commentators have defined as a virtual right to privacy in all but name[41]. This equitable doctrine developed out of the case of Prince Albert v Strange[42]where the Prince had supplied various members of his family with private drawings. An employee of the prince disseminated a copy of the etchings entrusted to him to a friend. The Prince then secured an injunction against the friend and it “was held that an injunction could lie in property, trust, confidence or contract”[43]. This case is very much in keeping with the use of breach of confidence in the early half of the 20th century as a restraint on the disclosure of trade secrets[44]. Prince Albert was followed by the two cases in the 1960s that sought to clarify and define the law of breach of confidence. In Argyll v Argyll[45] confidential secrets of marriage were successfully restrained and set the benchmark for the kind of information that can be restrained even absent of a contract or a property rights violation. The classic test of breach of confidence came two years later in Coco v A N Clark (Engineers) Ltd[46]which produced the classic test, in the words of Mackenzie[47], to establish a breach of confidence: firstly that the information was of a confidential nature, secondly that it was communicated in circumstances giving rise to an obligation of confidence and finally that the information was used in an unauthorised manner[48].

 

This test has been gradually eroded and stripped away over the years to reveal what Mackenzie argues is a virtual right to privacy[49]. The obligation of confidence has, in particular, been relaxed from the strong bonds that were required, such as marriage[50], to mere friendship[51] sufficing to satisfy this limb of the test. In 1990 the classic case on breach of confidence arrived in the form of Attorney General v Jonathan Cape[52] which demonstrated the scope for breach of confidence to be widened to material published by the media which is in the public interest. Lord Widgery made the following observations:

 

“…the Attorney General has a powerful reinforcement for his argument in the developing equitable doctrine that a man shall not profit from the wrongful publication of information received by him in confidence. This doctrine, said to have its origin in Prince Albert v Strange (1849) 1 H&T.1, has been frequently recognised as a ground for restraining the unfair use of commercial secrets transmitted in confidence”[53].

 

The developments in the Crossman diaries saga and the Spycatcher[54] case in 1990 explicitly recognised that breach of confidence was a right to privacy in all but name but these reforms by the judiciary were halted by the Kaye case mentioned above, however, which firmly “refused to widen breach of confidence any further and reaffirmed the position that there was no law of privacy in UK law.”[55] A further dilution of the obligation of confidence occurred in Shelley Films Ltd v Rex Features Ltd[56]where, following Spycatcher and not Kaye, the concept of a reasonable man test was introduced thus making it easier to argue that the photographer in question who supplied a picture of Robert de Niro to a newspaper should have known that photography was explicitly forbidden.  Five years later Laws J felt confident enough, albeit obiter dicta, to again reassert that breach of confidence was effectively a right to privacy in all but name and this was perceived to be the first signs of an emergence of breach of confidence as a right to privacy[57] two years before the Human Rights Act in 1998 came into force.

 

The most important case on breach of confidence so far has been Douglas v Hello! Ltd[58]which was an appeal against the decision to grant an interim injunction preventing Hello! from publishing more photographs of the Douglas’ wedding after a photographer breached the extensive security surrounding the event. The action was brought under breach of confidence coupled with a breach of privacy under Article 8 of ECHR. Although this case dragged on to 2004[59] and the Douglases’ ultimately prevailed on a breach of confidence, it is the original successful appeal against an interim injunction that prompted many commentators to proclaim a new right to privacy in the UK[60] with three of the judges in the case discussing the changing nature of breach of confidence. Sedley LJ observed:

 

“English law will recognise, and, where appropriate, protect, a right of personal privacy, grounded in the equitable doctrine of breach of confidence, which accords recognition to the fact that the law has to protect not only those whose trust has been abused but those who find themselves subject to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy”.[61]

 

It should be pointed that Bridge L.J’s dictum[62] which effectively restricted the privacy rights of those who actively seek publicity has been distinguished recently[63] but remains a difficult authority which those seeking to establish a breach of confidence will have to hurdle if those seeking relief have themselves wanted favourable publicity Thus the almost total abandonment of the tight controls which distinguished breach of confidence is quite evident from a test which at first required a strong bond such as marriage to impart an obligation of confidence[64], then to lesser bonds sufficing such as friendship[65], to a reasonable man test[66] and finally to Sedley LJ’s observations that this limb of the test is effectively redundant[67] as the right of privacy emerges not as something which has never been recognised before like a phoenix from the flames but rather, as Mackenzie has astutely observed, recognition of the role breach of confidence has been playing since 1849[68]. Eadie J outlines the modern position:

 

“Although the law of “old-fashioned breach of confidence” has been well established for many years, and derives historically from equitable principles, these have been extended in recent years under the stimulus of the Human Rights Act 1998 and the content of the Convention itself. The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.”[69]

 

The complementary laws outlined above such as trespass and breach of copyright all serve to augment the pivotal role of breach of confidence. The Human Rights Act did not step into a vacuum but was absorbed into existing actions such as breach of confidence: and it crucially must be analysed as such.

 

B. Freedom of expression and UK newspapers: last chance saloon?

The reference to the press in the UK drinking “in the last chance saloon” is derived from Sir Andrew Calcutt’s Royal Commission into the Press in 1990[70] when the then National Heritage Secretary David Mellor claimed that some parts of the media had snapped the government’s patience after numerous scandals which intruded into private grief, arguing that the media’s “sacred cash cow” of free speech should be restricted as he introduced the Royal Commission to the House of Commons[71]. Ultimately of course Calcutt came out against a new law of privacy and instead laid the foundations for the Press Complaints Commission and a code of conduct through self-regulation[72] but David Mellor’s comments deserve analysis: what was he referring to when he explicitly stated that the Press should be reined in? There is a historical common law right to freedom of expression in the UK which Laws J described as being: “…as much a sinew of the common law as it is of the European Convention for the Protection of Human Rights and Fundamental Freedoms”[73]. Lord Bingham of Cornhill, an eloquent defender of free speech, produced this classic observation:

 

“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…Where abuses are exposed, they can be remedied. Even where abuses have already been remedied, the public may be entitled to know that they occurred. The role of the press in exposing abuses and miscarriages of justice has been a potent and honourable one…Despite the high value placed by the common law on freedom of expression, it was not until incorporation of the European Convention into our domestic law by the Human Rights Act 1998 that this fundamental right was underpinned by statute.”[74]

 

Thus like privacy, freedom of expression was recognised if not eulogised long before the Human Rights Act arrived. Robertson’s criticisms of a notion of British free speech stems from successive governments introducing indirect privacy laws to curb the worst excesses of the tabloid and broadsheet press in chequebook journalism, the reporting of political scandals, undercover surveillance and entrapment[75]. There are myriad ways to hedge in what is left of free speech and the debate against the press enjoying untrammelled expression took on a life of its own in the 90s. The privacy furore in the mid 1990s reached what has been called “fever pitch”[76] after pictures of Princess Diana in 1993 working out in a gym were splashed across the front pages of the Sunday Mirror and the Mirror; a Sunday Times investigation in July 1994 uncovered two MP’s accepting cash for questions and in October 1994 the Guardian’s own investigation into allegations of sleaze in the Conservative Government led to the Guardian editor Peter Preston resigning from the PCC[77]. Throughout all of the times of crisis under both the Thatcher and Major governments the press only survived by clinging to the last vestiges of self-regulation: the Press Complaints Commission. The Commission was memorably attacked as concerned only in looking after its own: “a pact between the great and the good and the newspaper industry”[78] and Robertson further comments on the implications of a PCC ruling: “its adjudications are short and usually over simple, reflecting only on editors, who do not appear discomfited by its statements that they have breached a code of practice”[79]. The PCC produces a Code of Conduct that has, in the human rights era, been elevated by section 12 of the Human Rights Act 1998 under (4)(b) to a code with “indirect legal effect”[80] which renders its contents more important and gives some credibility to the much ridiculed notion of self-regulation. It has been observed that it now has a role to play in court cases involving the press and article 10:

 

“with respect to section 12(4) it may actually be the case that the press has shot itself in the foot. The section elevates the Press Complaints Commission (‘PCC’) Code of Practice to a position it has not occupied previously. This is of particular relevance in respect for private life cases where it has been held that where the Code has been flouted and no public interest claim is asserted, a claim to freedom of expression is likely to be trumped by Article 10(2)”.[81]

 

Under the Code of Conduct “there is a public interest in freedom of expression itself”[82]. Thus the Human Rights Act could justifiably be argued to have given some indirect teeth to the Code of Conduct, although not the PCC itself which continues to be seen as toothless[83], but the important point remains that which Lord Bingham made in Shayler; that although freedom of expression existed before the Human Rights Act it is only through human rights that it has been given a renewed emphasis albeit stopping dramatically short of a presumptive priority[84]. As will be seen in the following chapter on the European jurisprudence, there is a balancing exercise to be carried out between article 8 and article 10 which underpins the modern approach[85]. Furthermore, there are those who are extremely sceptical of the existence of free speech in Britain such as Geoffrey Robertson QC who argues passionately against Amos’ assertions that UK freedom of expression was the most highly evolved of rights in place before the Human Rights Act 1998 was passed[86]. Robertson points out that freedom of speech is too easily trampled on by the various laws that the courts have developed and highlights James v Commonwealth of Australia[87] as being reflective of the courts historical interpretation of a qualified right of free speech prior to the Human Rights Act. It was observed in that case that “free speech does not mean free speech”[88] but actually speech that is subject to the laws of, inter alia, defamation, blasphemy and sedition. It is difficult to disagree with Robertson’s viewpoint as he undertakes a look at the right from the Magna Carta up to the Human Rights Act and he points out that the only free speech right to be found in British constitutional law is in fact in the 1689 Bill of Rights but “belongs only to M.Ps and to peers, giving them absolute privilege against libel actions over allegations they make in the course of parliamentary proceedings”[89]. He concludes that:

 

“Although the European Convention, incorporated into British law on October 2nd, 2000 by the Human Rights Act (HRA), had been promoted by the spin doctor’s slogan “rights brought home”, article 10 (which guarantees freedom of expression) never has been at home in Britain. Although many other sections of the Convention, guaranteeing free trial and Habeus Corpeus and due process, owe their providence to English law, and…the “open justice” principle and rule against prior restraint were first formulated here, no generalised right of free expression, however common in rhetoric, entrenched itself in law.”

 

A free press has often been at the heart of arguments for free speech and the two have often been confused as, understandably, most cases on freedom of expression involve the press in some capacity and the two notions are inextricably woven[90]. The watchdog role of the press, lionised by newspapers for centuries as their raison d’etre[91], has been incorporated into the jurisprudence of the European Court of Human Rights as pointed out by Longmore LJ[92] and is referred to in countless judgements. The House of Lords has very recently reaffirmed the Reynolds public interest defence for journalists[93] and the protection of freedom of expression for newspapers, and by extension all of us, is gathering pace despite some worrying inroads into privacy.

Chapter 2: Article 8 and Article 10

A. Article 8

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

As has been pointed out above there is a duty for the courts to act compatibly with Convention rights being as they are included under the list of public bodies under the Human Rights Act 1998: their actions would be unlawful if they did not comply with the ECHR[94]. The extension of Convention rights to private law cases was described by the court in Venables v News Group Newspapers[95] as being beyond doubt and that s.12(4), in the words of Sedley LJ in Douglas, “puts beyond question the direct applicability of at least one article of the Convention as between one private party to litigation and another—in the jargon, its horizontal effect”[96]. The content of the privacy right in article 8 is very broad and has been held to cover: “…a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’”[97]. In reality this means private life in physical and psychological integrity[98] and even includesthe right to choose death[99] despite the memorable submissions of the Secretary of State in Pretty: “He submitted that the right to private life under Article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it.”[100] The court disagreed with the Secretary of State in this instance, holding that a blanket ban on assisted suicide could constitute an interference with article 8(1) but that the interference can be justified as safeguarding life and furthermore in accordance with the law[101].

The courts, in respect of article 8 and the media, have adopted a two stage test for article 8 which firstly asks whether there is a reasonable expectation of privacy and if there is to balance this against a countervailing public interest in interfering with the article 8 rights[102]. On the first limb of the test, which is objective[103], it needs to be established whether the activity reported on is in the public or private domains and there are several factors to be taken into account such as absence of consent and the nature of the intrusion. In Author of a Blog v Times Newspapers Ltd[104]the blogging of the detective was clearly a public activity while by contrast in Mosley v News Group Newspapers Ltd[105]the claimant did have such an expectation given the private nature of the sexual encounters. Regarding the second limb of the test the public interest, if the first limb is engaged, must be sufficient to outweigh the interference with the article 8 rights of the claimant. Again when looking at Author of a Blog the public interest is apparent in unmasking a senior police officer as the mysterious writer of a blog which had criticised the police while in Murray v Express Newspapers[106]the public interest element was very weak in taking pictures of the children of a celebrity and the fact that an ordinary, reasonable person would consider the publication of the pictures abhorrent was significant. The public interest has an explanatory definition in the PCC Editorial Code which has, in light of s.12(4)(a) of the Human Rights Act and the elevated status if the code, been approved by the courts in their attempts to capture the public interest and if the conduct complained of is disproportionate to the aim[107]. Eady J asked a simple question to demonstrate the concept:

 

“The question has to be asked whether it will always be an automatic defence to intrusive journalism that a crime was being committed on private property, however technical or trivial. Would it justify installing a camera in someone’s home, for example, in order to catch him or her smoking a spliff? Surely not. There must be some limits and, even in more serious cases, any such intrusion should be no more than is proportionate.”[108]

 

B. Article 10

  1. 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.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in 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 content of the right to freedom of expression is also very broad and includes not only written and oral forms of communication but also videos and internet sites[109]. Thus in the context of the press online editions are clearly included under article 10 and indisputably all printed newspapers will fall easily under article 10 which has been described as “easily engaged”[110]. The next stage in the analysis is whether there has been an interference with article 10? This is also easily proved and it has been held that injunctions[111], convictions under the Official Secrets Act 1989[112] and more gravely state censorship[113] all constitute an interference with article 10. As Merris points out the situation is not always so clear cut: in the case of copyright this is but a minor interference in light of the fact that a claim under copyright which does threaten publication is not an absolute bar to publication[114].

 

The real hurdle in article 10 is under (2): where such an interference as found in (1) must be justified under one of the extensive grounds since almost all cases so far have proceeded with recognisable laws at common law or by statute and are prescribed by law. There are two aspects of necessity which then need to be analysed: whether the interference was “necessary in a democratic society” and whether the interference is proportionate to the legitimate aim pursued. On the both it has been observed that:

 

“Lord Hope in Shayler held that the restriction on the disclosure of information cannot be said to be necessary in the interests of national security unless (a) relevant and sufficient reasons are given by the national authority to justify the restriction, (b) the restriction on disclosure corresponds to a pressing social need and (c) it is proportionate to the legitimate aim pursued.”

In determining proportionality the case law has developed certain general principles which the court will pay heed to: firstly s.12 of the Human Rights Act 1998 and the importance of freedom of expression as well as the PCC Code of Practice under s.12(4), secondly the importance of the freedom of the press, thirdly the public interest and finally deference to the decision maker[115].

 

C. The New Methodology: Von Hannover and Campbell

Von Hannover[116]

Under s.2 of the Human Rights Act 1998 courts in the UK must take into account decisions of the European courts when considering questions of convention rights. This case marked a watershed moment in striking the correct balance between article 8 and article 10 when Princess Caroline von hannover attempted to defend her right to privacy against paparazzi and tabloid intrusions. Germany was found to be in breach of the applicant’s right to privacy under the European Convention on Human Rights by denying her a remedy in their courts for intrusive pictures taken while she was shopping[117]. A key development in this case was that aspects of von hannover’s public life were held to be under the scope of article 8 as well as a limited sphere of interaction with others. Under article 8(2) the court crucially pointed out that the right to privacy is not absolute and that in having regard to the “rights of others” included the respect for the freedom of the press. The court observed:

“Although freedom of expression extended to the publication of photographs, this was an area where the protection of the rights and reputation of others took on particular importance. The present case did not concern the dissemination of ideas but of images containing very personal or even intimate information about an individual. Furthermore photographs appearing in the tabloid press were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution.”[118]

 

Thus freedom of expression is, of course, itself qualified and regard must be had to the “respect of the reputation and rights of others”[119]. In applying these tests to the current case the court observed that Princess Caroline’s role was only symbolic and not political and consequently this was not a matter to which the press could fulfil their watchdog role legitimately in contributing to a public debate[120]. The court then went on to hold that in the absence of any legitimate public concern freedom of expression would be more narrowly construed[121]. The court upheld the applicant’s right to privacy.

Campbell[122]

This case has also been remarkably influential in the debate and has been recognised judicially as marking a turning point in the application of these rights and indeed embracing a so-called “new methodology” according to Lord Steyn in In Re s (A Child)[123]. On the facts of this case the supermodel Naomi Campbell, who openly courted publicity, had volunteered false information to the newspaper, insisting that she didn’t take drugs. The newspaper then disclosed details of her addiction and obtained photos of her therapy meetings. The claimant succeeded at first instance but then the Court of Appeal overturned the decision in favour of the newspaper, ruling that publication of the photos was in the public interest. There was then an appeal to the House of Lords where their lordships by a 3-2 decision upheld her right to privacy. Lord Hoffman (dissenting) made the following observation on the unique difficulties of this case:

 

“The facts are unusual because the plaintiff is a public figure who had made very public false statements about a matter in respect of which even a public figure would ordinarily be entitled to privacy, namely her use of drugs. It was these falsehoods which, as was conceded, made it justifiable, for a newspaper to report the fact that she was addicted. The division of opinion is whether in doing so the newspaper went too far in publishing associated facts about her private life”.[124]

 

Hoffman went on to point out that the House, although divided on the law, was united on the principles to be taken from the case.  A number of factors spurred the House to reason that the claimant’s right to privacy had been breached: the nature of the drug addiction meetings were akin to medical records under the Data Protection Act 1998 and so required a particularly strong justification which was lacking, persons in her position with such difficulties may encounter setbacks if their struggles with drugs are disclosed and what Lord Hope christened as a “margin of appreciation” of journalists in deciding story content had been overriden by content which infringed the claimant’s right to privacy[125]. In In Re s (A Child) the new methodology of Campbell was summarised as thus:

 

“First, neither article has as such

Description

Open only to doctoral students based at universities within the U.S.

Workshop dates:
Spring - May 29-June 2, 2013 in Chaska, Minnesota
Fall - September 18-22, 2013 in Cambridge, Massachusetts

Peoples and places experiencing political violence, humanitarian disasters, and mass atrocities are notoriously difficult to study. While information and analysis regarding such situations are essential for developing responses and prevention, there are significant challenges for researchers. Building upon scholarship in law, politics, geography, critical social theory, international relations, conflict resolution, and the (rapidly expanding) subfield of transitional justice, this field will critically examine what counts as human rights, as well as how human rights are counted. Our central aim with this research field is to infuse doctoral research designs, at the critical stage of conception, with an understanding of the epistemological and empirical challenges of studying human rights.

“Human Rights” encompass an assemblage of ideas, norms, law, institutions, social movements and power relationships. Rather than an already-existing entity, category, or set of norms and practices, we deploy the term as a focus for critical inquiry. We seek dissertation projects broadly associated with human rights, and yet committed to a common conceptual focus: a critical analysis of the co-constitution of power, knowledge and violence. Questions that animate this research field include, for example, what constitutes ‘reconciling’ and ‘rescuing’ (in Foucault’s terms, to ‘let live’)? How are certain acts of violence celebrated as heroic acts of war, and others prosecuted as crimes? Projects may interrogate why, where and how particular regimes of protection of human rights, or accountability for international crimes, are applied, and who the critical actors are in such decision-making. Dissertations that will benefit from this conceptual focus could include projects that critically evaluate, for example: international political, humanitarian, and military interventions; peacekeeping missions; resettlement policies and aid programs; conflict resolution and post-conflict reconstruction projects; historical memory and landscapes of commemoration; transitional justice mechanisms (such as truth commissions); international tribunals; gendered analysis of violence and security. Projects that address what might be called ‘the humanitarian-industrial-complex’ ---the network of agencies and activities that function at the intersection of disaster and humanitarianism---are encouraged, especially research relating to the condition and creation of vulnerable populations. For example, a critical approach might interrogate discourses regarding rights, humanitarianism, and sovereignty in the international community’s responses to the crises in Libya and Syria.

Through the workshop sessions in the spring and fall, we will also address and debate three key considerations in human rights research: 1) security in the field for research informants and the researcher, 2) the handling and interpreting of sensitive and conflicting data, such as testimonies influenced by trauma, political and social repression and manipulation, and 3) the critical epistemological tools to identify what research problems can be feasibly and ethically addressed in complex and conflictive environments.

Applicants are welcome from any discipline. We invite scholars who employ diverse methodologies, include historical and contemporary case studies; discourse analysis; textual legal analysis; comparative social science methods including interviews, participant observation, process tracing and quantitative analysis; ethnography; genealogy, and Geographic Information Sciences. The envisioned multidisciplinary community will help ensure that dissertations are oriented, from their conception through publication, towards broader audiences of theorists, practitioners, and other interlocutors, across geographical regions.

Directors

  • Amy Ross

    Associate Professor, University of Georgia, Geography

    Amy Ross is Associate Professor of Geography at the University of Georgia, and affiliate faculty for the Institute of Women's Studies and the Latin American and Caribbean Studies Institute. Her research focuses on transformations in power and space through the struggles to achieve justice and accountability for mass atrocity. Ross has conducted research on truth commissions and international courts, and published this work in journals including The Professional Geographer, Political Geography, Space and Polity, Peace Studies, and The International Journal of Transitional Justice, as well as major media outlets such as The San Francisco Examiner and the Atlanta Journal-Constitution. Ross received her PhD in Geography from the University of California, Berkeley.

  • Chandra Lekha Sriram

    Professor, University of East London, Law and International Relations

    Chandra Lekha Sriram is Professor of International Law and International Relations at the University of East London. Her areas of teaching expertise include war and human rights, public international law, international criminal law, human rights, and conflict prevention and post-conflict peace building. She is author and editor of various books and journal articles on international relations, international law, human rights and conflict prevention and peace building, including Peace as governance: power-sharing, armed groups, and contemporary peace negotiations (Palgrave 2008); Globalizing justice for mass atrocities: A revolution in accountability (Routledge 2005); and Confronting past human rights violations: Justice versus peace in times of transition (Frank Cass 2004). Sriram received her PhD in Politics from Princeton University and her JD from the University of California, Berkeley.

Recipients

  • Samar Mussa Al-Bulushi

    Yale University, Anthropology

    Security Sector Reform, Counter-terrorism and Muslim NGOs in Kenya
  • Jian Ming Chris Chang

    Columbia University, East Asian Languages and Cultures

    Redress by Letters: Petitions for Rehabilitation in the post-Cultural Revolution Settlement

    In the decade that followed the Cultural Revolution, Chinese local government institutions received thousands of written petitions seeking official redress for the abuses of past campaigns. This dissertation aims to investigate a broad sample of these petitions so as to engage issues of political rehabilitation and transitional justice from the neglected vantage point of grassroots Chinese civil society. Straddling the ground between historiography and litigation, these petitions pointed to rupture between private historical experience and the ideals of socialist society, mobilizing past wrongs to shift the balance of reform. A critical reading of these texts will illuminate strategic attempts by petitioners to press claims while utilizing rhetorical strategies of rightful remonstrance to formally align their interests with those of power-holders. These petitions present a means of understanding how discourses of private suffering shaped the production of knowledge in public fields of political and historical reflection during the reform period.

  • Evelyn Galindo-Doucette

    University of Wisconsin-Madison, Spanish and Portuguese

    The Art of Remembering in the Legacy of El Salvador’s War: Individual Responses to Emblematic Memory in State Sponsored Murals

    In 2009 Mauricio Funes broke the 20-year reign of the right-wing Nationalist Republican Alliance (ARENA) becoming the first president elected from the Farabundo Martí National Liberation Front (FMLN), the political offshoot of El Salvador's guerrilla insurgency. The democratic alternation of power has intensified the struggle over national collective memory. In effect, the current administration's systematic "recuperation" of memory has sparked widespread public debate about the past. The polemical topic of memory in El Salvador today illustrates the unfinished character of the country's transition to peace. The central question of my research is how individual memories, specifically traumatic ones, compare with the framework of postwar collective memory and transition. I plan to use images of key scenes from two recent state sponsored murals to conduct individual and group interviews in order to tease out the tensions and intersections between individual memory and the dominant emblematic historical narratives.

  • Alexa Hagerty

    Stanford University, Anthropology

    Gray Zones and White Slavery: Memory and Moral Ambiguity and Human Trafficking in Argentina

    Didier Fassin has called for anthropologists to wade into moral territories that are less clearly defined than "the good and the malign" and exist in a "moral gray area" (Rahimi 2012). While human trafficking is commonly theorized as unproblematically malign, I propose that it may be better understood as a "moral gray area." I explore two zones of moral ambiguity in human trafficking in Argentina. The first is the ambiguity of memory; I argue that the category of human trafficking is shaped by the persistence of nineteenth century discourses of "white slavery" and hygiene. In addition, I argue that legal responses to human trafficking in Argentina reveal institutional legacies of the dirty war. Secondly, I argue that human trafficking disrupts late liberal forms of recognition by exceeding familiar binaries such as rescued/rescuer and victim/perpetrator (for example, when women kidnapped into human trafficking themselves become traffickers), opening complex moral terrain.

  • Christoph Hanssmann

    University of California, San Francisco, Social and Behavioral Sciences

    Globally Assembling "Transgender": Biomedical, Human Rights, and Activist Construction of the Transnational Category of "Transgender"

    My project explores the expanding category of "transgender" as it is produced through the interrelated discourses of health/biomedicine, human rights, and community-based activism. Specifically, I will investigate several sites of biomedical, human rights, and activist knowledge production: the World Health Organization's International Classification of Disease; the Yogyakarta Principles; and Global Action for Trans* Equality. Each of these sites represent arenas in which notions of health, gender, and citizenship are reconstructed and debated. As "transgender" becomes an increasingly transnationally recognized category, NGO- and community-based activists, in addition to biomedical and human rights experts, play a role in the shape and direction of these dialogues. Through ethnographic approaches to tracing the production of "transgender," I will explore the effects of the category's transnational mobilization, and in particular, address how "neutrality" and "universality"—central themes in both biomedicine and human rights—are taken up or not in the processes of categorization and classification.

  • Gregoire Hervouet-Zeiber

    Johns Hopkins University, Anthropology

    The Emergence of the Chechen Syndrome: Trauma and Violence in Post-Soviet Russia
  • Austin Kocher

    Ohio State University, Geography

    Undocumented Immigrants Before the Courts: A Legal Geography of Immigration Hearings and Deportations

    Aggressive immigration enforcement initiatives at the federal (i.e. border militarization), state (i.e. Arizona's SB-1070), and local scale (i.e. 287(g) and Secure Communities) have yielded year-over-year record numbers of deportations from the United States, crossing 400,000 for the first time in 2012. As a result, not only has the immigration court system dramatically expanded to adjudicate immigration cases, but more people are being caught in the connections and contradictions between local criminal law enforcement practices, federal civil immigration law, and the despairingly few legal options and services available to undocumented immigrants. This doctoral dissertation research integrates ethnographic fieldwork and legal analysis to investigate the juridical rationalities that animate the everyday practices that constitute U.S. immigration courts, the impact of courts on the management of populations undocumented immigrants, and the contested strategies used by respondents and their counsel to achieve favorable outcomes.

  • Laura M. Matson

    University of Minnesota, Twin Cities, Geography

    Land, sovereignty, and the convergence of internal and external sites of contestation: Indigenous Claims Before the Inter-American Commission on Human Rights

    This research focuses on the Hul'qumi'num Treaty Group case before the Inter-American Commission on Human Rights as a lens through which to analysis how claims to aboriginal land are articulated before international human rights bodies. Despite criticisms by some activists and scholars that indigenous-specific human rights protections codify systems of state hegemony and undermine indigenous territorial and sovereign integrity, indigenous groups have frequently brought claims to human rights tribunals against states. The jurisprudence that has developed out of these cases has extended state obligations to indigenous land in important ways, and has shaped political discourses on indigenous rights. By focusing on the ways in which aboriginal groups articulate claims before regional and international human rights tribunals, this research attempts to understand how international human rights law is made contingent and shaped in practice, and how human rights discourses can create contestations around fixed notions of state sovereignty and territorial entitlement.

  • Jaimie Nicole Morse

    Northwestern University, Sociology

    Measuring Gender-Based Violence in Conflict Zones: How Technologies, Legal Norms, and Human Rights Ideologies Travel Globally

    Intended to increase prosecution of gender-based violence in war, a growing number of interventions involve training healthcare practitioners in medical forensic evidence collection to corroborate allegations of rape. Such attempts are part of broader shifts in the field of human rights advocacy to document human rights violations using rigorous, standardized methodologies. Yet evidence collection techniques may in fact help to define what they purport to measure, thereby having profound symbolic and material effects on the credibility of victims' narratives and the histories of mass atrocities. I bring together approaches in science and technology studies, law and society, feminist studies, and the sociology of human rights to understand how medical forensic exams and their associated measurement techniques may influence what counts as gender-based violence in conflict and with what effects. Combining archival research with interviews, I trace the global assemblage of actors and technologies that has been instrumental in these efforts.

  • Justin Perez

    University of California, Irvine, Anthropology

    Translating Sexuality and Human Rights: Municipal Antidiscrimination Law in the Peruvian Jungle

    If political violence and truth and reconciliation can be identified as transformative moments affecting future legal and cultural configurations, then what are some of these effects? This ethnographic project frames the passage and usage of municipal antidiscrimination law recognizing sexual orientation in Tarapoto, Peru within the historical context of internal armed conflict, notably the systematic violence directed towards sexual minorities that occurred in Tarapoto in the late 1980s. I approach sexuality as a site to examine the social and cultural transformations engendered by politics of violence and reconciliation. Examining how contemporary sexuality activists in Tarapoto, through workshops in surrounding villages and negotiations with regional authorities, translate the discourse of human rights into local contexts, this project asks why legal recognition for sexual minorities has taken the form of antidiscrimination law in Peru and seeks an explanation for its popularity.

  • Azita Ranjbar

    Pennsylvania State University, Geography

    Geographies of Human Rights: Changes in Human Rights Discourses as Local Movements become Global
  • J Sebastian

    University of California, Riverside, Ethnic Studies

    The Privileged Subject: Colonialism, Modernity, and Human Rights

    My research centers the question of how law ensured the legitimacy of the colonial project through the construction of the universal rights bearing subject. I plan to show that 16th century Spanish jurist Francisco Vitoria's work is foundational to International legal frameworks and human rights discourses today because it influenced the complex formation of modern nation-state relationships and social hierarchies through codifying conquest and colonization. Through tracing the genealogies of rights from their codification within this text, I plan to reframe traditional narratives regarding the emergence of population, governance, and capitalism as inextricably linked and founded in doctrines of colonial conquest, racial chattel slavery, and heteropatriarchy. From this, my project will provide an analysis of the ways these genealogies continue to work within modern day legal systems, and specifically within movements that seek redress from state repression through articulations of human rights.

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