Chapter 22 Guidance on answering the exam questions

1. Evaluate, with reference to European and UK cases, the way the balance of media freedom with the rights of individuals, including prominent ones, to protect their privacy is undertaken.

• Introduce the issue by reference to media regulators and courts and that as (probably) public authorities they are bound by the HRA. They are also giving effect to statutes which must be interpreted for compatibility with Convention rights.

• Outline both Article 10 (relied on by a newspaper or broadcaster defending its publication) and Article 8 (relied on by the claimant alleging a violation of privacy.

• These are both qualified rights which protect a value subject to lawful interferences under the terms of Article 10(2) and 8(2). Outline the process by which these rights are given effect (law, purpose and proportionality).

• In the end, as has been stressed in many cases such a Campbell MGN, it is for the regulators to undertake a balancing exercise in which the particular weight to be given to the various factors in the case are assessed.

• There are many examples of cases in which the ECtHR has considered these issues, especially as regards prominent people. The issue is how to balance legitimate public interests against the privacy that even prominent celebrities are entitled to enjoy. See for example: Von Hannover v Germany (1) and (2).

• Likewise, this same balancing approach has been adopted by UK courts in cases such as Campbell v MGN and Weller v Associated Press.

2. A group of newspaper editors and broadcasters are perplexed by the concept of ‘responsible journalism’.

Prepare a lecture in which you explain the concept, put it in context, and relate it to the rights and obligations of the media in respect of, in particular, Article 8 and Article 10.

• In this question you should deal with an important issue of English media law which has been strongly influenced by Article 10 and how it is balanced with Article 8.

• Consider the general position of the media under the Convention – their importance and their “duty” to act as “watchdog” and report on public affairs (broadly defined). In doing so they can interfere with the rights of others, in particular they can say damaging things about individuals which may affect the reputation of those individuals (and reputation is protected by “private life” in Article 8).

• Defamation is an action brought to by a person to protect her or his reputation.

• But such actions can have a “chilling” effect on the media’s ability to perform its role. Therefore, Article 10 and Article 8 need to be balanced. Article 10(2) allows lawful and proportionate interferences with free expression which aim at protecting the reputation of others.

• Qualified privilege allows the media to avoid an action of defamation on the grounds that the story is in the public interest (so that any damage to a person’s reputation would only be actionable if the damage was malicious, which the claimant would have to prove).

• However qualified privilege is a matter of law. One of the requirements is that the story is the product of “responsible journalism”. This is a judicial test. The mere fact that the media think the story is in the public interest is not enough. The story must be in the public interest in the legal sense of that term (that excludes mere celebrity gossip, for instance, and is of some degree of seriousness) and also have been obtained in a responsible way (e.g. that some attempt at checking has been made. In Reynolds v Times Newspapers Lord Nicholls identified ten factors that (non-exclusively) could be considered.

• Importantly, though, responsible journalism is compatible both with the idea (found in Article 10 cases law) that journalists must have freedom over the form of their production (e.g. it could be irreverent and satirical) and also with the important point that, although some attempt must be made to ascertain the truth, it is part of journalistic duty to report stories the truth of which cannot, at the time, be established. There may be a duty to publish allegations.

• In relation to balancing with Article 8, the fact that a story which invades privacy is also in the public interest and the product of responsible journalism, gives it significant and perhaps overwhelming weight against all but the strongest claims for privacy.
• In conclusion you might argue that this approach is an important feature in the maintenance of freedom of expression over matter of public concern especially where rights to private life are also engaged.