There may or may not be questions in the law test directly asking about human rights, but these rights may well underpin some answers and students may wish to refer to them. For this reason, they should know the general principles set out here, and especially the three key articles (10, 8 and 6).
The law gives journalists (and the public) rights, as well as posing threats.
Under the Human Rights Act 1998 and the European Convention on Human Rights, the most fundamental protection for the media comes from Article 10 – the right to freedom of expression.
Crucially, this includes the right to receive information and opinion – including facts about the activities of governments and other public bodies. It also says that the wider public has a right to receive the output of journalists, in print and on air.
There are two other rights generally considered to be of significance for the media:
- Article 8 – right of respect for privacy and family life. Increasingly, this is used against the media to try to block publication. The husband of pop star Cheryl Cole won damages from Heat magazine for a feature about their secret wedding – after it was noted that he did not court publicity. Note that Article 8 includes respect for correspondence – which would make phone hacking a breach of human rights.
- Article 6 – right to a fair trial. This places responsibilities on the media not to compromise a fair trial – but other legislation did that anyway. It says judgment must be pronounced publicly but that the press and public could be excluded from court for various reasons, including national security.
The rest of this briefing will be whited out to aid revision in the period leading up to the law test.
The Ofcom Broadcasting Code takes account of several of the articles of the Convention. As well as Articles 10 and 8, it cites Article 9 (the right to freedom of thought, conscience and religion) and Article 14 (the right to enjoyment of human rights without discrimination on grounds such as sex, race and religion).
Other articles protect right to life, freedom from torture, and liberty itself – with exceptions necessary in a democratic society.
Sometimes, these rights are in conflict: for instance, when a celebrity goes to court to protect his privacy, but the media claim the right of freedom of expression. In such cases, judges tend to place highest value of freedom of expression. This is an area that should be given special attention by students.
Public interest is also a factor in deciding freedom of expression issues – as it is for defamation, freedom of information and data protection, but in different ways. Importantly, upholding freedom of expression is held to be a matter of public interest in itself – which may mean a court will protect the right of a newspaper to tell a fairly trivial story that a celebrity finds embarrassing.
Human interest often has a bearing on stories in the news: for instance, the long-running efforts by the UK government to deport the Islamic cleric Abu Qatada. He appealed his case to the European Court of Human Rights, which said that his human rights would be jeopardised if he was returned to a country where he would be at risk of torture. Eventually a solution was negotiated.
Note that the European Convention of Human Rights (ECHR) is not related to the European Union.
Where two rights are in conflict and one or both must be restricted by the courts, the principle of “proportionality” must be applied. This means a restriction must go no further than is necessary. Quinn’s Law for Journalists gives the example of an order restricting press coverage of a court case to protect a defendant’s right to a fair trial. The proportionality principle would allow the press to argue that this could be achieved by merely postponing publication, rather than banning it.
The European Convention on Human Rights (it has a longer name, but we don’t need it here) was drafted by the new Council of Europe in 1950, and brought into effect in 1953, in an attempt to prevent the kind of horrors experienced in the Second World War. The European Union was formed for much the same reason, but the two are not connected. The United Nations had drawn up a Universal Declaration of Human Rights in 1948, but it is the European Convention that applies in UK law.
More than 40 countries have signed up to the convention. Britain was one of the first.
The European Court of Human Rights was set up at the same time – not to be confused with the European Court of Justice, which regulates member states of the European Union. Unhelpfully, media reports often refer simply to “the European Court”, which probably means the reporters don’t know the difference.
The 1998 Human Rights Act formally incorporated the convention into English law, giving it greater effect. When new laws are being drafted, ministers must say whether they are compatible with the Human Rights Act, though there may be cases where it is decided they need not be. Where existing laws have conflicted with the Act, it has been down to judges to decide which law should prevail. There decisions become part of English law (known as “case law”).
One result of the Act was that citizens could take their case to UK courts if they believed their human rights were being breached; previously, they had to go to the European Court of Human Rights. They can still appeal their case at European level.
Decisions of the European Court of Human Rights are binding on the British government. However, the British Government has been slow (as of January 2015) to act on the court’s ruling that prisoners should have the right to vote.
A bill of rights (what – another one?)
The Conservative Party announced late in 2014 that it would scrap the Human Rights Act 1998 if elected to form a government after the 2015 general election, and replace it instead with a US-style bill of rights. This reflected frustration of the ability of the European Court of Human Rights to impose its rulings on the UK – for instance, ordering that prisoners should have the right to vote. The Daily Mail welcomed the end of the “human rights farce”, but the next day reported that the Council of Europe strongly rejected the idea that the court should become merely an advisory body. A former Tory Attorney General scorned the idea. A Guardian article explained how the Act – and the European Convention on Human Rights – had transformed UK law, among other articles exploring the issue.
In fact, England already has a Bill of Rights – established in 1688/9 after the revolution that removed King James II from the English throne and replaced him with William and Mary. It limited the power of the Crown and is still formally part of English law.
What the Human Rights Act says
Article 10 says:
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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 8 says:
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.
Article 6 says (in part):
1: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.