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Magazine of the Chartered Institute of Journalists

Chartered Institute of Journalists’ Submission to the UK Ministry of Justice’s consultation on Human Rights Act Reform: A Modern Bill Of Rights- to reform the Human Rights Act 1998

The Chartered Institute of Journalists is the world’s longest established professional association for journalists and only such body with a Royal Charter. We represent staff and freelance journalists across all sectors of the media, including local and national newspapers, periodicals, broadcasting and electronic publishing.

The Institute prides itself in being non-party political and expresses opinions only on matters that relate directly to our profession and industry or to our members.

We propose to confine our responses in this document to the perspective of professional journalists. Within that group we concentrate on questions that are relevant to our members. These are questions 4 to 7 which you raise in respect of freedom of expression on page 64 of your consultation document.

Preamble.

The Institute welcomes the spirit and intentions of the MOJC for strengthening the public interest role of freedom of expression in legal reform, as set out in the government’s consultation document between paragraphs 204 and 217, pages 61 to 63.

The government has rightly recognised, at paragraph 215, ‘there should be a presumption in favour of upholding the right to freedom of expression, subject to exceptional countervailing grounds, clearly spelt out by Parliament.’

The very concept of a modern declaration of human rights in the 20th century originated with journalists and writers debating and advancing the concept in British national newspapers in 1940. Great Britain was, then, the only surviving and free democracy in the world fighting and committed to defeating the totalitarian and genocidal tyranny occupying most of Europe.

Eleanor Roosevelt with a copy of the Universal Declaration of Human Rights in 1948. Image: Library of Congress. Public Domain.

The proposal for a new Bill of Rights was consolidated in the Penguin Special written by H.G. Wells and published that year. It was received and duly read by US President Franklin Delano Roosevelt and inspired the UN Universal Declaration of Human Rights in 1948 and the European Convention on Human Rights in 1950.

It is our belief that there was never any intention to equally balance freedom of expression with other rights such as Article 8 ‘Right to respect for private and family life.’ 

H.G. Wells and the English common law authors for the ECHR intended Article 8 to protect individual citizens from the ‘tyranny of the secret dossier,’ in terms of state surveillance and government intrusion into private and family life. It was intended to ameliorate the breaching, violation and abuse of human rights carried out by vertical state power of private citizens.

Chapter 5 of The Rights of Man – What Are We Fighting For? (pp 48-54) initiated the idea of legal protection to guard against the menace of the Gestapo and CHEKA/KGB to private and family life, not the inquiry and investigation by ‘public watchdog’ professional journalists wishing to challenge conduct and behaviour that is legitimate for public interest debate and discussion in any democratic society. 

Cover of the iconic and influential Penguin Special published in 1940.

The enactment of the Human Rights Act in the year 2000 led to a severe chilling impact on freedom of expression because it failed to protect English common law freedom of expression by enabling a media right to privacy to be developed by case law without effective statutory safeguards for the public interest in freedom of expression.

This combined with the subsequent judicial activism of the courts which drew upon legal jurisprudence and values decided at the European Court of Human Rights in Strasbourg.

These were often alien to the British tradition of freedom of expression and the democratic imperative of media freedom.

British defamation/libel law became telescoped into European style privacy law where the concepts of reputation, honour, family life, dignity and private information have morphed together and now frequently trump and defeat the interests of freedom of expression.

The constitutional principle of public interest in this process has been determined by lawyers for powerful private and corporate litigants and the lobbying of some academics who believe mainstream media publications are propagandist platforms for capitalism.  Members of the judiciary have, as a result of Sections 2, 3 and 6 of the HRA, followed the jurisprudential influence and precedence of Strasbourg rulings rather than any available and existing benchmarks set by democratically elected members of the House of Commons, any consensus expressed by the UK journalism industry or the everyday democratic decision of people to choose to buy, consume and receive media publication.

When UK senior courts decided the HRA empowered them to decide that Article 10 would be equally balanced with Article 8 and that the legal system would determine adjudication, freedom of expression not only became expensive but has frequently been cancelled and liquidated when privacy rights have been raised. 

The Institute argues that equal balancing in privacy disputes usually means a defeat and censorship of the truth when privacy prevails; particularly in relation to public interest issues.

The Institute also argues that, as a result, British journalism does not currently thrive and serve the public interest effectively in our democracy as well as it should. This chilling effect in the diminution of freedom of expression means British media publishers operate a policy of defensive journalism in the context of existing UK media law.

The problematic mischief of judicial activism in media privacy law is that it now operates as censorship of the truth and, indeed, in untruths that do not qualify as libel.

Previously, UK journalism publications had at least the right to publish and then pay for the consequences of publishing untruthful information that damaged reputation.

Now, they avoid publishing what they believe to be public interest truths because they expect to be either injuncted or inevitably lose subsequent actions for publishing accurate information deemed to be restricted under the doctrine of reasonable expectation of privacy.

Freedom of the media is expensive to defend. As the jurist, Geoffrey Robertson QC wrote in a recent article (14/03/2022) published in the Daily Telegraph ‘Britain is not a land of free speech. It is a land of expensive speech… Our media law is defective. Libel is the only civil law which places the burden of proof on the defendant… For this reason, the US rightly refuses to take notice of English libel judgements.’ 

He added: ‘…the enhanced definition of privacy, derived from the European Convention, is having a chilling effect on freedom of speech.’

Royal Courts of Justice in London 2022- the location for the Queen’s Bench Division of the High Court which hears most libel trials in Britain. Image by Tim Crook.

The vital constitutional safeguard established by the libel case Bonnard v Perryman in 1891 intended that there should be no prior restraint and injunctions issued where a media defendant says it would defend the action and take the consequences of paying damages if unsuccessful, has been effectively reversed.

In an equal balancing act on privacy rights, prior restraint would usually be guaranteed with the argument that privacy, once published, could never be retrieved. This is known as the  ‘cube of ice melting’ metaphor.

Section 12(3) of the Human Rights Act gave the initiative to litigants to stop publication of material because they only had to satisfy the court that, in a trial, it would be ‘likely’ that they would establish that the publication should not be allowed. 

The vital constitutional safeguard established  by the Judicial Committee of the House of Lords in Lewis v Telegraph in 1964 recognised that the positive effect of media publication of somebody’s release and no action after arrest and police questioning would be destroyed by all the case law leading to the UK Supreme Court ruling Bloomberg v ZXC in 2022.

We are sure Parliament can find another way of fairly balancing media freedom with any risk that unfair and inaccurate reporting may damage reputation in such a way that the mere fact a court or government agency has exonerated an individual is not effective enough.

Freedom of expression and that of the media to report accurately in the public interest is now trumped by the idea that anyone investigated, questioned or arrested by any state investigating authority can never recover from the loss of reputation of that becoming public; not even when it is fully reported that they have been exonerated and/or no further action is to be taken.

‘Reasonable expectation of privacy’ in media law now clearly encompasses what was previously regarded as of acute public interest in everyday journalistic inquiry and coverage of crime, anti-social and controversial behaviour.

The Institute supports any move by the government to reset the notion of a British Bill of Rights in favour of media freedom and freedom of expression and we are very happy to offer some constructive suggestions for reform.

Question 4: How could the current position under section 12 of the Human Rights Act be amended to limit interference with the press and other publishers through injunctions or other relief?

We would redraft the section with the following amendments set out in italics.

Cover of the Human Rights Act 1998- enacted in October 2000.

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12 Freedom of expression.

(1)This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the ECHR Convention and English Common Law right to freedom of expression.

(2)If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a)that the applicant has taken all practicable steps to notify the respondent; or

(b)that there are compelling reasons why the respondent should not be notified.

(3)No such relief is to be granted so as to restrain publication before trial, where the court is notified that the respondent/defendant seeks to defend the action at full trial on the basis that publication is in the public interest.

(4)The court must make its decision with a presumption in favour of upholding the right to freedom of expression, where the proceedings relate to material which the respondent/defendant claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)the extent to which—

(i)the material has, or is about to, become available to the public; or

(ii)it is, or would be, in the public interest for the material to be published;

(b)any relevant privacy code.

(5)In this section—

    “court” includes a tribunal; and

    “relief” includes any remedy or order (other than in criminal proceedings).

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Question 5: The government is considering how it might confine the scope for interference with Article 10 to limited and exceptional circumstances, taking into account the considerations above. To this end, how could clearer guidance be given to the courts about the utmost importance attached to Article 10? What guidance could we derive from other international models for protecting freedom of speech?

The Institute recommends explicit legislative reform of the laws of libel and privacy so that:

1 The burden of proof is on the claimant not the defendant.

2 Where it is argued that publication is in the public interest because the claimant is a public figure and/or the circumstances of the narrative involves a claimant in the context of a public interest event, the claimant can only succeed if able to prove that the defendant was actuated by malice or published with a reckless disregard for the truth.

3 A statute of limitations in all privacy actions being one year, equivalent to the current position for libel litigation, unless with the leave of the court in exceptional circumstances.

The Institute would argue that the United Kingdom in culture, history and legal tradition should be inspired by the evolution and setting of pragmatic priority for freedom of expression and freedom of the media in libel and privacy law in the USA – a similar English Common Law legal jurisdiction.

We would combine a legislative constitutional declaration of media freedom with any additional necessary legislative reform either in a new British Human Rights Act or in respect of defamation and privacy law.

Our recommended model is the recognition by the US Supreme Court of protection for honest mistakes in public interest story publication in the cases of The US Supreme Court case of Sullivan v New York Times in 1964 which means, in libel, the burden of proof is on the claimant, who can only succeed in public interest cases by proving reckless disregard of the truth or that the publication was actuated by malice.

This was followed by the US Supreme Court case of Time, Inc v Hill in 1967 which raised the same threshold of public interest freedom of expression in relation to privacy rights.

Putting it simply, an honest mistake in defaming anybody or intruding into their privacy in a public interest context is protected, in litigation, by a pragmatic priority for freedom of expression and media freedom derived from the US Constitution’s First Amendment.

US Supreme Court in 1945. Image: Library of Congress. Public Domain.

We believe this could be elucidated in UK legislation by a legal duty on the part of the courts and tribunals to exercise ‘a presumption in favour of upholding the right to freedom of expression’ in media law disputes.

Question 6: What further steps could be taken in the Bill of Rights to provide stronger protection for journalists’ sources?

The Institute has a number of recommendations to provide stronger protection for journalists’ sources.

We would reform Section 10 of the 1981 Contempt of Court Act and replace it with the following rubric to improve protection for journalists, publishers and their sources.

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10 Sources of information.

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which they are responsible, provided:

1.Any court or tribunal adjudicating on any application for the disclosure of a journalist’s source information must exercise a presumption in favour of upholding the right to freedom of expression necessary in a democratic society.

2.Where a court or tribunal is asked to order the disclosure as necessary for national security or for the prevention of disorder or crime, the freedom of expression presumption can only be defeated where it is proved the publication could seriously damage, or has seriously damaged the public interest, and the journalist knew that it could or would do so.

3.The presumption in favour of freedom of expression for journalist sources resides equally with the sources themselves.

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The Institute has offered the construction above so as to strengthen the protection of journalists sources’ recognised by the European Court of Human Rights in GOODWIN v. THE UNITED KINGDOM – 17488/90 [1996] ECHR 16 (27 March 1996) , FINANCIAL TIMES LTD AND OTHERS v. THE UNITED KINGDOM – 821/03 [2009] ECHR 2065 (15 December 2009), SANOMA UITGEVERS B.V. v. THE NETHERLANDS – 38224/03 [2010] ECHR 1284 (14 September 2010), TELEGRAAF MEDIA NEDERLAND LANDELIJKE MEDIA BV AND OTHERS v. THE NETHERLANDS – 39315/06 – HEJUD [2012] ECHR 1965 (22 November 2012), & BECKER v. NORWAY – 21272/12 (Judgment : Violation of Article 10 – Freedom of expression-{general} (Article 10-1 – Freedom of expression Freedom to impart information…) [2017] ECHR 834 (05 October 2017)

European Court of Human Rights courtroom in Strasbourg. Credit Adrian Grycuk 2014. Creative Commons licence.

The Institute has drafted 10(3) in order to advance and align the journalist source protection to the sources themselves. In the Metropolitan Police Elveden inquiry, we believe the police, CPS and DPP were wrong to prosecute journalists using the common law offence of misconduct in public office.

The jury acquittals and the Court of Appeal rulings in France v R. [2016] EWCA Crim 1588 (27 October 2016) and Chapman & Ors, R. v [2015] EWCA Crim 539 (26 March 2015) demonstrated recognition that for confidential journalist source protection to be defeated, the threshold of proof in prosecution needed to be that the publication of the information disclosed actually damaged the public interest. We believe this threshold should be raised to ‘seriously damaged the public interest’. 

Furthermore, we believe it was morally and legally wrong that the public official sources prosecuted had been the victims of the media publishers News Group Newspapers and Trinity Mirror Newspapers breaching the ethic of journalist source confidentiality.

The Metropolitan Police were only able to identify and prosecute because the information had been given to them by the very news publishers who had paid for the information and promised them journalist source confidentiality.

Graphic on Operation Elveden conducted by the Metropolitan Police against journalists and their sources between 2011 to 2016.

The Grand Chamber of the ECtHR is now considering whether to extend Article 10 freedom of expression rights to a journalist source criminally convicted of leaking confidential information.

Known as the ‘Luxleaks case’, Raphaël Halet argues that his criminal conviction and fine for disclosing tax documents relating to certain of his employer’s clients is a breach of his Article 10 rights.

We would recommend that Parliament legislates to place a legal duty on courts and tribunals to give the same Article 10 protection of journalist source rights to the sources themselves; particularly in circumstances where journalists or publishers have breached them by failing to respect their confidentiality through negligence or other reasons.

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The Institute recommends reform of the Investigatory Powers Act 2016 so that any application for the communication records of journalists or their sources by more than 600 public bodies, including UK intelligence agencies, police forces and local councils, are determined by independent court hearings with a single judge and representation by the relevant parties.

We urge that the current secret/confidential processes undertaken and decided by Judicial Commissioners of the Investigatory Powers Commissioner’s Office, and civil servants in Office for Communications Data Authorisations (OCDA) are properly transferred to due process in terms of court hearings with a presumption to respect Open Justice principles.

We seek the equivalent treatment of court adjudication of production order applications for journalistic-excluded confidential material and special procedure material set out in the Police and Criminal Evidence Act 1984.

We would argue that journalists and their publishers should be informed about all the applications and have the right to be represented.

The statue of journalist and editor John Wilkes- an 18th Century crusader for press freedom commemorated in New Fetter Lane, City of London. Image by Tim Crook.

Where serious national security issues are raised or where the integrity of a serious criminal investigation may be undermined by detailed disclosure, we believe Article 10 freedom of expression and English Common Law freedom of expression rights are still capable of being protected through the use of Special Advocates and Closed Material Procedure.

The current situation of total secrecy over the identity of the journalists and publications subject to IPA applications, inadequate oversight and lack of open justice and accountability for decision making is a serious undermining of journalist freedom and the protection of their sources in a democratic society and in terms of natural justice.

Question 7: Are there any other steps that the Bill of Rights could take to strengthen the protection for freedom of expression?

The Institute has a longstanding position of advocating for Parliament to legislate for a guarantee of media freedom, which is equivalent to Section 3 of the Constitutional Reform Act 2005 that provided the same for an independent judiciary.

Court One of the United Kingdom Supreme Court- created as a result of the Constitutional Reform Act 2005

We agreed with the recommendation of Sir Brian Leveson’s Inquiry report of 2012 at Page 1780.

We believe this rubric, with our amendments and changes set out below, could constitute a section of the proposed new Modern Bill of Rights.

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GUARANTEE OF MEDIA FREEDOM

(1)  The Secretary of State of Digital Culture, Media and Sport and other Ministers of the Crown and all with responsibility for matters relating to the media must uphold the freedom of the media and its independence from the executive.

(2)  All courts and tribunals exercising the judicial power of the state and government bodies making decisions on the release of information must exercise a presumption in favour of upholding the right to freedom of expression, subject to any exceptional countervailing grounds legislated for by Parliament.

(3) All courts and tribunals, and government bodies must exercise a presumption in favour of:

(a) the importance of the freedom and integrity of the media;

(b) the right of the media and the public to receive and impart information without interference by public authorities; 

(c)  the need to defend the independence of the media.

(4)  Interference with the activities of the media shall be lawful only insofar as it is for a legitimate purpose, is necessary in a democratic society or for which there is a pressing social need, having full regard to the constitutional presumption in favour of the importance of media freedom in a democracy.

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