Article 10 in the 1998 Human
Rights Act has made freedom of expression an inherent liberty, as opposed to
one defined only in negative terms. This shift has a clear benefit for the
freedom of the press and has strengthened legal defences for the bedrocks of
the industry, most notably in terms of a journalist’s right to protect the
identity of their sources. Article 8’s introduction of the right to respect for
a private life, however, has led to a development in privacy law that
distinctly hinders press freedom. Since the 1998 Human Rights Act, the media
has become restricted in its capacity to infringe on the private lives of
individuals and this has a particular impact on celebrity stories. Yet the
Human Rights Act stipulates a balance between the right to privacy and the
public interest and this almost always favours the press when it is working
with a genuinely journalistic purpose rather with the commercial goal of sales.
Essentially, the press is helped by Human Rights law when it is what Helen
Fenwick and Gavin Phillipson would term a qualified good, and penalised when it
is “unqualified”.1
Human Rights law helps journalists when they are journalists and hinders them
when they are gossips.

 

The 1998 Human Rights Act
benefits journalists primarily in the sense that Article 10 has redefined
freedom of expression as an inherent right. In British Steel Corp v Granada Television Ltd in 1981, freedom of the
press was defined as “generally, freedom to publish without pre-censorship”.2
Before 1998, freedom of expression was a negative liberty. It was “simply what
was leftover over the scope of restriction had been determined”.3
When cases for press freedom were successful, it was because they were
justified 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, “It
is of the highest importance that a democratically elected governmental body
should be open to uninhibited pubic criticism”.4
As Fenwick and Phillipson argue, this line of reasoning signalled the
judiciary’s “failure to give much consideration to other rights-based
justifications”.5
Press freedom was conditional on its effect on democracy; it was not an
individual right. Similarly, in the 1991 Brind
case, Lord Bridge of Harwich discussed freedom of speech only in terms of a
“political complaint”. 6
 Again, it signified only in terms of its
benefit 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 Brind
was overruled. English law was such that, as Lord Ackner said, there was
“at present no basis upon which the proportionality doctrine applied by the
European 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 Home
Department in 2002, the Administrative Court ruled that the denial of the prisoner’s
request to speak to the press was a disproportionate interference with press
freedom.8
By 2006, in In the matter of B, press
freedom had become defined as “one of the essential safeguards against closed
justice”.9
Following the Human Rights Act, freedom of expression became a positive liberty
– the right to “freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of frontiers”.10
The Human Rights Act provided “a ‘floor’ not a ‘ceiling’ of rights”: it granted
journalists new, solid ground to stand on.11

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Though Strasbourg jurisprudence
dictates proportionality, as Merris Amos argues, journalists are generally in
“a position of advantage when it comes to the balancing process”. 12
Article 10 has enshrined several pillars of reporting, most notably a
journalist’s right to protect the identity of anonymous sources. Though Section
10 of the 1981 Contempt of Court Act lists a right to keep sources anonymous
except in extreme cases, it was largely ignored before 1998. The ruling in Goodwin v UK in 2002, that nobody should
be forced to identify sources unless the public interest was exceptionally
strong, was a watershed.13
The role of this precedent can be seen clearly in Financial Times Ltd & Ors v UK in 2009, when the European Court
of Human Rights ruled definitively that the “special nature” of the principle
of source protection was more significant in terms of public interest than the
conduct or purpose of the source.14
Similarly, Human Rights law has generally granted the media greater freedom in
court reporting. Article 10 increases a journalist’s ability to challenge court
orders for anonymity. As in Re S in
2004, Article 10 means that there is “a general and strong rule in favour of
unrestricted publicity of any proceedings in a criminal trial.”15
By granting journalism a foundation in freedom of expression, Human Rights law
has clearly facilitated investigative reporting.

 

1 Helen Fenwick and Gavin Phillipson, Media Freedom under the Human Rights Act,
2010, 2

2 British Steel Corp
v Granada Television Ltd 1981 AC 1096

3 Fenwick & Phillipson, 5

4 Derbyshire v Times Newspapers 1993 AC534

5 Fenwick & Phillipson, 16

6 Secretary of State for the Home Department ex parte Brind 1991 AC 696

7 Brind 1991 AC 696

8 Hirst v Secretary of State for the Home Department 2002 EWHC (Admin) 602

9 In the matter of B 2006 EWCA Crim
2692

10 Art.10, Human Rights Act, 1998

11 Fenwick & Phillipson, 7

12 Merris Amos, “What Has Human Rights Law Done for the
Media?”, in Merris Amos, Jackie Harrison and Lorna Woods (eds), Freedom of Expression and the Media,
2012, 212

13 Goodwin v UK 2002 ECHR

14 Financial Times Lts
& Ors v United Kingdom 2009 ECHR

15 Re S (A Child) 2004 UKHL 47