Libel tourism, the common law invention of privacy and Justice Eady

Unusually, in the UK, the introduction of Article 8 of the ECHR has occurred due to judicial innovation not a constitutional protection directly. J. Eady here speaks about his work in the Moseley case and his lack of belief in 'libel tourism', whereby foreign celebrities and billionaires bring actions in his courtroom to protect their reputations worldwide. This was shortly followed by Tiger Woods' injunction against British newspapers.

Council of Europe work on Article 10

See various meeting documents here and here. The Council has various working groups that coordinate the 47 members and 5 observers' work on freedom of expression, in connection with Article 10 of the European Convention.

Human Rights Day – 10 December “Human rights must go online!”

Press Release - 940(2009) Statement by Secretary General of the Council of Europe Thorbjørn Jagland Strasbourg, 09.12.2009 – The Secretary General of the Council of Europe, Thorbjørn Jagland, today gave the following message to mark Human Rights Day: “Freedom of expression is a fundamental human right, enshrined in the European Convention on Human rights and a pillar of the Europe we know today. We live in an age of technological innovation and advancing globalisation, where freedom of expression must continue to be central to our vision of Europe. The Internet is a space of creativity and enormous opportunity, but it can also present threats to our privacy, and dangers related to all sorts of cybercrime. We must never forget that the Internet can be (mis)used to promote discrimination and hatred. That is why freedom of expression is not an absolute right, it is a right that comes with responsibility. So it must be on the Internet. On the occasion of International Human Rights day and recognising the many essential advances in protecting and promoting human rights, the Council of Europe will seek close cooperation with governments and the private sector to make sure that human rights are both promoted and protected from abuse online”.

Defamation law and free speech

An interesting Article 19 piece on the effects of defamation damages worldwide.

Internet Governance Forum and censorship in Egypt

Interesting to see that the 4th annual United Nations meeting on Internet governance is taking place in the country which is 143rd on the list of media freedoms and with Reporters Without Frontiers formally protesting about the dictatorship's treatment of bloggers:

“Egypt’s legitimacy to host such a meeting is questionable as it has repeatedly been guilty of violations of online free expression,” Reporters Without Borders said. “It is astonishing that a government that is openly hostile to Internet users is assigned the organisation of an international meeting on the Internet’s future. Egypt is one of the enemies of the Internet and if Internet governance requires a degree of regulation, it should be of a liberal nature and not the kind that the Egyptian government would like to impose.”

There have four reminders of Egypt’s readiness to censor the Internet in the past two weeks alone. Police arrested two young bloggers, Mohamed Adel, 20, and Amr Osama, 19, and their lawyer, Amr Ezz, in central Cairo on the night of 3 November on charges of “spreading false news and rumours liable to disturb the peace” and gave them a beating after escorting them to El-Azbakeya police station. They were released the next morning. Adel was previously detained for three months and tortured after being arrested in November 2008. At the end of October, the authorities abandoned an investigation into a police officer, Ashraf Aglan, and his brother, Ahmed Aglan, who attacked another blogger, Wael Abbas (see his blog http://misrdigital.blogspirit.com/). The prosecutor said it was dropped for lack of evidence although three medical reports confirm Abbas’ injuries. Ayman Nour, a human rights lawyer who defends freedom of expression, was forbidden to leave the country on 4 November, as he was about to fly to the United States. He was given no reason for the ban.

Global Media Law and Policy Newsletter

This weekly newsletter is an excellent source of current news about media law and freedom of expression litigation.

Tribunal appeal: Wilders wins right to enter UK to show film

Unsurprisingly the politically-motivated decision by the now-former Home Secretary to ban a controversial Dutch politician from the UK has been overturned on appeal.

"Substantial evidence of actual harm would be needed before it would be proper for a government to prevent the expression and discussion of matters that might form the opinions of legislators, policy makers and voters,"Judge CMG Ockelton, who chaired the tribunal, said. The ruling said there had been no evidence of public order problems or damage to community relations as a result of a previous visit by Wilders to Britain.

"It was more important to allow free speech than to take restrictive action speculatively," said Ockelton. The judgment goes further, saying that even if there were evidence that Wilders posed a threat to public order it would still not have been necessary to ban him because the police would have been able to ensure no disorder took place and remove him if there was trouble.

Dutch court rules on privacy against international news agency

This case is interesting both for its definition of privacy within the activities covered, the decision to sue news agency rather than the newspapers in Netherlands, the Code of Conduct which Dutch media had signed, and for the implications for other countries, such as France with tighter privacy laws, and the US with almost none.

Geert Wilders wins 17% vote and 4 European seats in election

The anti-Islamic party has big wins, obviously not inconsiderably assisted by the UK Home Secretary's decision to resign - she has since left the British government to retire.

Is Times offset by Jameel?

The recent (March 2009) Times libel case before the ECHR may be offset by the reform of libel law in the Jameel case (2005) before the English Court of Appeal, in which the Chancellor of Essex University Lord Phillips gave judgment.

ECHR fails to prevent permanent liability for UK libel

This decision which effectively removes Internet archives from UK jurisdiction inspired Jack Straw to launch a consultation on Internet libel (partly in response to a Private Eye campaign and US Congressional condemnation of UK Libel law). More academic comment here.

Human rights and the Internet

Excellent overview and analysis of European human rights law and the Internet - and a proposal for a Bill of Rights in the EU - written by Prof. Steve Peers from the law Dept for the European Parliament.

Home Secretary's letter to Gert Wilders

I can't find an official source, but this is a scan of the letter. Wilders attempts to enter the Uk to present himself at the House of Lords this afternoon.

Most famous freedom of expression speech in British Parliament

This was delivered by the Earl of Chatham ('Pitt the Elder') in 1768, and it was on this basis as much as anything that the United States created its 1st Amendment to the Constitution. 

The irony that a visiting MP is banned from debating on freedom of expression in the House of Lords 241 years later is obvious...

Hate speech: Dutch MP banned in UK, prosecuted in Netherlands

This is an unofficial English translation of the Amsterdam appeal court decision that Geert Wilders, libertarian politicial leader in the Dutch Parliament, has a case to answer for distributing his anti-Koran/Islam film, Fitna.

He has been banned from visiting Britain's Parliament for a debate after a viewing of his film, because a Muslim English peer warned (or threatened) unrest from Muslims who want his film banned. This ban was under sweeping Immigration Regulations NOT domestic human rights law - causing a major diplomatic incident with the Netherlands as MPs of all parties condemned the British government decision:

"Lord Ahmed had previously threatened the House of Lords authorities that he would bring a force of 10,000 Muslims to lay siege to the Lords if Wilders was allowed to speak. Lords authorities had stood firm and said extra police would be drafted in to meet this threat and the Wilders meeting should go ahead. But now the government has announced that it is banning Wilders from the country. A letter from the Home Secretary’s office to Wilders, delivered via the British embassy in the Hague, said:
...the Secretary of State is of the view that your presence in the UK would pose a genuine, present and sufficiently serious threat to one of the fundamental interests of society. The Secretary of State is satisfied that your statements about Muslims and their beliefs, as expressed in your film Fitna and elsewhere would threaten community harmony and therefore public security in the UK."

Global Online Freedom Act - not in Europe!

The US passed a law requiring US ISPs and technology companies to not cooperate with filtering - especially secret filtering - with repressive regimes. The European Parliament attempt to introduce an equivalent has been rejected by the Commissioner - on grounds of competitiveness with other regions, by which she must mean Chinese and Taiwanese equipment manufacturers. Economics trumps freedom of expression. Note how widespread blocking of websites such as Google and Youtube is.

Seminar 2: Enforcing Human Rights: European Convention on Human Rights

Who has rights (freedom of expression or privacy) and against whom they may be enforced?  If it is not possible to enforce rights, they may seem to the person whose rights have been invaded to have little value.  Mechanisms of enforcement are crucial. What is significant in the context of this course is that the media, as well as having rights – notably freedom of expression – may also infringe the rights of others, especially privacy.  Typically rights protect individuals against the actions of government or public bodies.  Although the media may fall within the definition of a public body, equally many media are private actors.  How do the mechanisms of enforcement work in this context?

The ECHR (European Convention on Human Rights) and the ECtHR (European Court of Human Rights) located in Strasbourg, France, are both creatures of the Council of Europe.  Article 10 ECHR protects freedom of expression.  The case law of the ECtHR dealing with Art. 10 is expanding rapidly, and this particular body of case law is very relevant as regards the protection of free speech across Europe. The Council of Europe has 47 members at present, and the organisation includes several countries which are not member states of the EU (e.g. Albania, Turkey, the Ukraine, the Russian Federation).  All 27 member states of the EU, however, are also members of the Council of Europe.  The Council of Europe is completely independent of the European Union (EU).  The ECtHR is not to be confused with the European Court of Justice of the EU (ECJ) located in Luxembourg.

Questions:

• How does Art. 10 ECHR work? (Part 2 puts a brake on Part 1?)
• What is the “doctrine of the margin of appreciation”?
• How can a case be brought to the ECtHR?
• In addition to Art. 10 ECHR, what other ECHR articles are of relevance to the media and to freedom of expression in Europe?

A video history of the ECtHR entitled “The Conscience of Europe” can be found on the Court’s website: http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/How+the+Court+works+(film)/

Essential Reading:

Summaries of ECtHR cases: 

http://www.coe.int/T/E/Human_rights/hrhb2.pdf http://www.coe.int/t/e/human_rights/media/CaseLawArt10_en.pdf

Barendt, Freedom of Speech (Oxford, 2005, OUP), chapter 2, pps 441-444

Janis, Kay and Bradley, European Human Rights Law, (Oxford, OUP, 2000) ‘The Limits of Positive Obligations’ pp. 244 – 253

Barendt Broadcasting Law: A Comparative Study (1995, Clarendon Press), chapter 2 ‘Broadcasting Freedom’

M. O'Boyle, Colin Warbrick, Ed Bates and D.J. Harris, Law of the European Convention on Human Rights, 2nd. ed. 2005, OUP.

Further Reading:

a)         Position in the United States

Fowler and Brenner (1982) “A Marketplace Approach to Regulation” 60 Texas Law Review pp. 207-257

Cox Broadcasting Corp. et al. v. Cohn No. 73-938 Supreme Court of the United States 420 U.S. 469; 95 S. Ct. 1029; 43 L. Ed. 2d 328; 1975 U.S. EXIS 139; 32 Rad. Reg. 2d (P & F) 1511; 1 Media L. Rep. 1819

Abrams et al. v. United States No. 316. Supreme Court of the United States 250 U.S. 616; 40 S. Ct. 17; 63 l. Ed. 1173; 1919 U.S. Lexis 1784 (available on Lexis), dissent Holmes J.

b)         Position in the United Kingdom

Hunt, M., ‘The Effect on the Law of Obligations’ in Markesinis, B. S., (ed) The Impact of the Human Rights Bill on English Law (1998, Clarendon) pp. 159- 180

Re S (A child) [2005] 1 AC 593 (this case has been discussed at Child and Family Law Quarterly (2006) 18(2), 269-285)

X, a woman formerly known as Mary Bell and Y v. Stephen O'Brien, News Group Newspapers LTD and MGN Ltd [2003] EWHC QB 1101 (available on the Court Service web site: http://www.courtservice.gov.uk/View.do?id=1754 and Lexis)

Douglas v Hello! Ltd [2007] UKHL 21

Handyside v. UK, ECHR  judgment 7^th December 1976, (A/24) 1 EHRR 737 (also available on ECHR web site: http://www.echr.coe.int/ )

c) International Law

Article 2(1) ICCPR

Communication 361/198 A Publication and A Printing Company v. Trinidad and Tobago, note especially para 3.2

d) Types of Regulation

See Hans Bredow Institut Report of the European Commission on different types of regulation in the media sector, especially country reports on the UK and France: http://ec.europa.eu/avpolicy/docs/library/studies/coregul/interim_app_2.pdf

 

Seminar 1: General Issues

Before considering any substantive legal issues, we need to address some general issues. We look at freedom of expression, what it might mean at a theoretical level and why it is perceived as important. 

Questions:

• What are the rationales behind Freedom of Expression?
• How is Freedom of Expression guaranteed nationally and internationally?
• What are the main rationales behind Media Law, Policy and Regulation?
• Are these the same for all channels of communications?
• What are the main differences in approaches to regulation of expression between the US and countries of the EU?

Essential Reading:

Barendt, E.,  Freedom of Speech (Oxford University Press, 1985) (especially Chapters 1 and 3) 2nd Edition Oxford University Press 2005.

Tambini, D., Leonardi, D. and Marsden C. Codifying Cyberspace, Routledge, London, 2008. (chapter 11).

Also read one of the following:

Goldberg et al (eds), Regulating the Changing Media: A Comparative Study (1998 Clarendon)

Joseph, Schultz and Castan The International Covenant on Civil and Political Rights: cases, materials, and commentary (2^nd ed) (Oxford University Press, 2004)

Loveland, I., (ed) Importing the First Amendment (1998, Hart Publishing)

Schauer, F., Free Speech: A Philosophical Inquiry (University of Cambridge Press, 1982)

Sunstein, C. R. Why Societies Need Dissent (Harvard University Press). London 2003.

Sunstein, C.R Republic.com (Princeton University Press, Princeton (2001).

Fowler and Brenner (1982) A Marketplace Approach to Regulation Texas Law Review 60:207 p.209 

General note on materials

You will find below the prescribed reading lists and seminar questions for each teaching session in Term 2. There is no set text for this course, although there are a few books which might be useful. 

Barendt, Freedom of Speech, (Oxford, OUP, 2005). 

Fenwick, H., and Phillipson, G., Media Freedom under the Human Rights Act (Oxford, OUP, 2006) is a detailed discussion of the issues facing the media.  

Janis, Kay and Bradley, European Human Rights Law, (Oxford, OUP, 2000) is now dated; a second hand copy may nonetheless prove to be a useful acquisition. 

As you will appreciate from the range of issues that will be discussed and jurisdictions covered, it is difficult to find a single work that reflects upon even a majority of these issues in sufficient depth.  No one book is sufficient on its own.  All the recommended sources are readily available either electronically, or in hard copy in the library; extra copies of specific articles/chapters may be available as offprints. 

PLEASE NOTE: photocopied materials will not generally be distributed to students on this course. Research skills are an important part of your legal training, and will inculcated through the preparation of the seminars.  The course supervisor will direct you to appropriate sources on a seminar by seminar basis. Note that although some of the materials are quite long, we will re-visit some of these materials on a number of occasions during the course; the reading is therefore not as onerous as might appear.  Further, selecting the aspect of a judgment that is relevant to the issue under consideration is a valuable legal skill.

Should you have any queries or questions concerning the course, please feel to contact the course supervisor:

Course outline 2009

Seminar 1: General Issues

Before considering any substantive legal issues, we need to address some general issues.  The first concerns what we mean by comparative law and what it involves.  The second looks at freedom of expression, what it might mean at a theoretical level and why it is perceived as important. 

Seminar 2: Enforcing Human Rights: European Convention on Human Rights

A significant question is who has rights (whether freedom of expression or privacy) and as well as the issue of against whom they may be enforced.  If it is not possible to enforce rights, they may seem to the person whose rights have been invaded to have little value.  Mechanisms of enforcement are therefore crucial.  What is significant in the context of this course is that the media, as well as having rights – notably freedom of expression – may also infringe the rights of others, especially privacy.  Typically rights protect individuals against the actions of government or public bodies.  Although the media may fall within the definition of a public body, equally many media are private actors.  How do the mechanisms of enforcement work in this context?

Seminar 3: Defamation and Freedom of Expression

Before exploring the scope of speech, the seminar will be begin by focusing on the tension between protection of reputation and freedom of expression. How do the UK, US and Germany vary in their approaches to protection of reputation? Particular emphasis will be placed on the defences available to media organisations and how political speech and public interest speech is protected.

Seminar 4: Political Speech

We discuss the scope of freedom of expression in the context of political speech.  Freedom of expression covers a broad range of speech, but one of the key attributes of the media is its watchdog role in a democratic society.  This portion of the seminar will therefore concentrate on the protection awarded to the media in this context by looking at the approach of the national systems towards comment on matters of public interest and towards criticism of politicians.  This latter issue has also links with issues discussed when we move on to consider privacy.  One particular aspect that we will consider, albeit briefly, will be the freedom of minority groups, religious groups and those that are perceived to be terrorists to access the media and any constraints on the reporting thereof.  We will not have time in this course to consider the protection of sources or the right of access to information.

Seminar 5: Artistic Speech, Obscenity and Pornography, Commercial Speech

This seminar will look at the other forms of speech/expression protected by freedom of expression, especially as exercised by the media, and its relationship other interests, such as the protection of minors. Some of the general principles regarding freedom of expression will be the same as those discussed in seminar 4, regarding political speech (e.g distinction between statements of fact and opinion, truths and falsehoods).  Here particular tensions arise as to the boundary to be drawn between commercial speech and other forms of speech, and whether this makes commercial speech any the less valuable.  A linked question is whether motive for speech renders it less worthy of protection.

Seminar 6: Privacy, Human Dignity and the Person in the Public Sphere

One right which might readily conflict with freedom of expression is the right to privacy.  The first of these seminars starts by considering the scope/meaning of privacy before considering the circumstances in which privacy may or may not be invaded according to international law.  In this assessment, criteria relating to the status of the person as well as the person’s physical location when the invasion of privacy took place may all be relevant.  The second seminar considers the position under national law, and specifically the position of the person who has temporarily been in the public eye as opposed to a public figure or celebrity.

Seminar 7: Identity, Publicity and Privacy as a Property Right

Although many justifications for privacy refer to considerations of human dignity, some conceptions of privacy (or aspects of privacy) view the rights almost as a form of property; thus an individual may have a right to his or her image voice or persona that can be controlled and used as a commodity.  In addition, some view a publicity right as distinct from the right to privacy.  The view of privacy as a property right has been accepted more easily in some jurisdictions than others.  As it does not yet seem to have been raised in the context of international law, this seminar will focus on the approach in the national jurisdictions under review.

Seminar 8: Broadcasting Regulation

The broadcast media has typically been heavily regulated in Europe; this is not the case in the USA.  The approaches reflect different philosophies about the nature and importance of freedom of expression and the broadcast media.  Understanding these competing views requires us to have some understanding of the different freedom of expression claims made by different parties making up the broadcast media (journalists as well as production companies and those responsible for the transmission of content), as well as any rights that the audience may have.

Seminar 9: The Internet and the Impact of Other New Technologies

This seminar will focus on the Internet and its relation to freedom of expression and privacy.  While the Internet’s architecture might allow for complete freedom of expression, this architecture can also be used to impose limits.  The technology has also changed how information is imparted and received, and on a more fundamental level how people communicate.  In this seminar we will return to some of the readings from the first seminar relating to freedom of expression and technology.