Article 10 in the 1998 HumanRights Act has made freedom of expression an inherent liberty, as opposed toone defined only in negative terms. This shift has a clear benefit for thefreedom of the press and has strengthened legal defences for the bedrocks ofthe industry, most notably in terms of a journalist’s right to protect theidentity of their sources. Article 8’s introduction of the right to respect fora private life, however, has led to a development in privacy law thatdistinctly hinders press freedom. Since the 1998 Human Rights Act, the mediahas become restricted in its capacity to infringe on the private lives ofindividuals and this has a particular impact on celebrity stories. Yet theHuman Rights Act stipulates a balance between the right to privacy and thepublic interest and this almost always favours the press when it is workingwith a genuinely journalistic purpose rather with the commercial goal of sales.Essentially, the press is helped by Human Rights law when it is what HelenFenwick and Gavin Phillipson would term a qualified good, and penalised when itis “unqualified”.
1Human Rights law helps journalists when they are journalists and hinders themwhen they are gossips. The 1998 Human Rights Actbenefits journalists primarily in the sense that Article 10 has redefinedfreedom of expression as an inherent right. In British Steel Corp v Granada Television Ltd in 1981, freedom of thepress was defined as “generally, freedom to publish without pre-censorship”.2Before 1998, freedom of expression was a negative liberty. It was “simply whatwas leftover over the scope of restriction had been determined”.3When cases for press freedom were successful, it was because they werejustified by an argument for participation in democracy. In Derbyshire v Times Newspapers in 1993,though the ruling favoured the press, it was because, as Lord Keith ruled, “Itis of the highest importance that a democratically elected governmental bodyshould be open to uninhibited pubic criticism”.
4As Fenwick and Phillipson argue, this line of reasoning signalled thejudiciary’s “failure to give much consideration to other rights-basedjustifications”.5Press freedom was conditional on its effect on democracy; it was not anindividual right. Similarly, in the 1991 Brindcase, Lord Bridge of Harwich discussed freedom of speech only in terms of a”political complaint”. 6 Again, it signified only in terms of itsbenefit to democracy and not as an individual right.
By this logic, before 1998,non-political speech could therefore only find an indirect defence. Moreover,even the defence for political speech in Brindwas overruled. English law was such that, as Lord Ackner said, there was”at present no basis upon which the proportionality doctrine applied by theEuropean Court can be followed by the courts of this country”.
7 In direct contrast to Brind, after the Human Rights Act, in Hirst v Secretary of State for the HomeDepartment in 2002, the Administrative Court ruled that the denial of the prisoner’srequest to speak to the press was a disproportionate interference with pressfreedom.8By 2006, in In the matter of B, pressfreedom had become defined as “one of the essential safeguards against closedjustice”.9Following the Human Rights Act, freedom of expression became a positive liberty– the right to “freedom to hold opinions and to receive and impart informationand ideas without interference by public authority and regardless of frontiers”.10The Human Rights Act provided “a ‘floor’ not a ‘ceiling’ of rights”: it grantedjournalists new, solid ground to stand on.11 Though Strasbourg jurisprudencedictates proportionality, as Merris Amos argues, journalists are generally in”a position of advantage when it comes to the balancing process”.
12Article 10 has enshrined several pillars of reporting, most notably ajournalist’s right to protect the identity of anonymous sources. Though Section10 of the 1981 Contempt of Court Act lists a right to keep sources anonymousexcept in extreme cases, it was largely ignored before 1998. The ruling in Goodwin v UK in 2002, that nobody shouldbe forced to identify sources unless the public interest was exceptionallystrong, was a watershed.
13The role of this precedent can be seen clearly in Financial Times Ltd & Ors v UK in 2009, when the European Courtof Human Rights ruled definitively that the “special nature” of the principleof source protection was more significant in terms of public interest than theconduct or purpose of the source.14Similarly, Human Rights law has generally granted the media greater freedom incourt reporting. Article 10 increases a journalist’s ability to challenge courtorders for anonymity.
As in Re S in2004, Article 10 means that there is “a general and strong rule in favour ofunrestricted publicity of any proceedings in a criminal trial.”15By granting journalism a foundation in freedom of expression, Human Rights lawhas clearly facilitated investigative reporting. 1 Helen Fenwick and Gavin Phillipson, Media Freedom under the Human Rights Act,2010, 22 British Steel Corpv Granada Television Ltd 1981 AC 10963 Fenwick & Phillipson, 54 Derbyshire v Times Newspapers 1993 AC5345 Fenwick & Phillipson, 166 Secretary of State for the Home Department ex parte Brind 1991 AC 6967 Brind 1991 AC 6968 Hirst v Secretary of State for the Home Department 2002 EWHC (Admin) 6029 In the matter of B 2006 EWCA Crim269210 Art.10, Human Rights Act, 199811 Fenwick & Phillipson, 712 Merris Amos, “What Has Human Rights Law Done for theMedia?”, in Merris Amos, Jackie Harrison and Lorna Woods (eds), Freedom of Expression and the Media,2012, 21213 Goodwin v UK 2002 ECHR14 Financial Times Lts& Ors v United Kingdom 2009 ECHR15 Re S (A Child) 2004 UKHL 47