Feature: Freedom of Expression, Privacy and the Supreme Court
30 Wednesday Sep 2009
Hugh Tomlinson QC News Articles, Features
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In a recent thoughtful speech entitled “Freedom of Expression and the Role of a Supreme Court” Dame Mary Arden considered a number of freedom of expression cases which had come before Supreme Courts around the world. She posed the question as to whether Supreme courts should lead the development of the law in this area or leave sensitive matters to democratically elected politicians. Although the decisions of the courts in freedom of expression and privacy cases have often been extremely controversial, such cases did not come before the House of Lords with any regularity. It seems unlikely that the position will change in the near future. It does not appear that any privacy or defamation appeals are presently pending before the Supreme Court.
However, the House also considered freedom of expression issues in a number of other contexts. In R v Home Secretary, ex p Simms ([2000] 2 AC 115) it emphasised the importance of freedom of expression as a fundamental right which could not be overriden by general words. In In Re S ([2004] UKHL 47) it set out for the first time the principles for balancing Article 8 and 10 in the context of the reporting of criminal trials, The most recent “freedom of expression” case heard by the House of Lords was the “reporting restriction” case of In Re British Broadcasting Corporation ([2009] UKHL 34) which, again, emphasised the importance of freedom of expression in the context of reporting restrictions on a criminal appeal.
During the same period the House of Lords heard only two “privacy” cases. In Campbell v MGN ([2005] UKHL 61), by a bare majority it upheld Naomi Campbell’s claim for misuse of private information resulting from the publication of a photograph of her leaving Narcotics Anonymous. However, in Wainwright v Home Office [2003] UKHL 53) it held that there was no general common law tort of invasion of privacy. This case resulted in a finding of a violation of Article 8 by the Court of Human Rights (one of four occasions in which this Court has found fault in House of Lords decisions in the area of privacy and freedom of expression).
After the Campbell decision the House of Lords regularly refused leave to appeal in privacy cases including Murray v Big Pictures ([2008] EWCA Civ 446), McKennitt v Ash ([2006] EWCA Civ 1714) and HRH Prince of Wales v Associated Newspapers ([2006] EWCA Civ 1776), and Lord Browne v Associated Newspapers ([2007] EWCA Civ 295). Some interesting statistical analysis of the cases by Mr Benjamin Pell can be found in the Newsletter of David Price, Solicitors and Advocates for June and July 2008.
The lack of freedom of expression and privacy cases before the Court can be contrasted with the position in Canada where (as pointed out in a recent article in the Winnipeg Free Press drawn to my attention by Mr Pell) the Supreme Court is due to hear give judgment and hear argument in six major media cases this autumn. We will comment on these in future posts.
The record of the House of Lords in “Libel, Privacy and Freedom of Expression” cases is thoughtfully analysed by Professor Eric Barendt in The Judicial House of Lords 1876-2009 (edited by Louis Blom-Cooper, Brice Dickson and Gavin Drewry). His conclusion is that
the jurisprudence of the House of Lords in libel and [privacy and freedom of expression] is curiously uneven (p.668)
This conclusion relates to whole the body of the House of Lords judicial work in this area. It is suggested that the recent position is more impressive. Despite having dealt with a relatively small number of cases, the House of Lords has, over the past two decades, developed a common law jurisprudence of freedom of expression, some elements of a tort of privacy (limited to the misuse of private information) and the principles for balancing the two. It has (more or less) kept up with the rapid development of the Strasbourg freedom of expression and privacy case law without discarding the nuances of the common law of defamation. This not a bad track record.
Nevertheless, there remains work to be done – particularly in relation to the more absurd aspects of the common law of defamation and “non information” invasions of privacy. This is an area in which the legislature has, traditionally, refrained from acting for fear of offending entrenched interests. To answer Dame Mary’s question mentioned at the outset, this is an area in which it seems that, at present, only the Supreme Court can develop the law to adjust to modern circumstances. It is to be hoped that the Court can be persuaded to take more appeals in this area with a view to such further development.
