Category: Freedom of Expression

Cliff Richard v BBC – Part II – Media speech and publication in the public interest

The record man said
‘Don’t let it go to your head, I’m gonna make you a star’
… So mama please don’t worry about me, I’m nearly famous now.

Sir Cliff Richard OBE in Greenwich 2017 (via Flickr) (element)1. Introduction
The words above are in the first verse of “I’m Nearly Famous”, the title track of an album released in 1976 by Sir Cliff Richard [Sir Cliff], pictured left rocking Greenwich, UK, in 2017. Six weeks earlier, the South Yorkshire Police [SYP] had admitted that their tip off to the BBC that he was being investigated in respect of allegations of historic sex abuse infringed his privacy (see, eg, Richard v BBC [2017] EWHC 1648 (Ch) (26 May 2017)). On foot of that tip off, the British Broadcasting Corporation [the BBC] gave those allegations and the search of Sir Cliff’s property in Sunningdale, Berkshire prominent and extensive television coverage. Last week, in Richard v BBC [2018] EWHC 1837 (Ch) (18 July 2018) Mann J held that that the BBC’s broadcasts also infringed Sir Cliff’s privacy, and awarded him £210,000 damages. In a previous post, I have considered Mann J’s analysis that Sir Cliff had a reasonable expectation of privacy under Article 8 of the European Convention on Human Rights [the ECHR] in respect of the police investigation. In this post, I will consider whether the BBC nevertheless were entitled under Article 10 ECHR to broadcast the allegations and the search. In a future post, I will consider the quantum of damages awarded.

2. Article 10 ECHR and the BBC’s Freedom of Expression
The concept of media freedom is at the heart of modern democracy (see, eg, András Koltay “The concept of media freedom today: new media, new editors and the traditional approach of the law” (2015) 7(1) Journal of Media Law 36). It is a significant point of difference between Sir Cliff’s case against the SYP and his case against the BBC. Although Mann J held that Sir Cliff’s prima facie reasonable expectation of privacy arose against both the SYP and the BBC, the difference between them arose at the subsequent stage of balancing Sir Cliff’s reasonable expectation of privacy under Article 8 ECHR with the BBC’s freedom of expression under Article 10 ECHR. Mann J undertook that balance pursuant to the speech of Lord Steyn in In re S (A Child) [2005] 1 AC 593, [2004] UKHL 47 (28 October 2004) [17], which he interpreted ([2018] EWHC 1837 (Ch) [276]) in the light of the judgment of the Grand Chamber of the European Court of Human Rights in Axel Springer AG v Germany 39954/08, (2012) 55 EHRR 6, [2012] ECHR 227 (7 February 2012) [89] (see, generally, Rebecca Moosavian “Deconstructing ‘Public Interest’ in the Article 8 vs Article 10 Balancing Exercise” (2014) 6(2) Journal of Media Law 234) He held that factors to be taken into account in balancing Article 8 and Article 10 include (a) the contribution of the publication to a debate of general interest, (b) how well-known is the person concerned and what is the subject of the report, (c) the prior conduct of the person concerned, (d) the method of obtaining the information and its veracity, (e) the content, form and consequences of the publication, and (f) the severity of any sanction imposed.

Applying each criterion in turn, Mann J held (a) knowing that Sir Cliff was under investigation might have been of interest to the gossip-mongers, but it did not contribute materially to the genuine public interest in the existence of police investigations in this area ([2018] EWHC 1837 (Ch) [282]); (b) “public figures are not fair game for any invasion of privacy” (ibid, [287]); and (c) Sir Cliff’s public position and stated views do not diminish his right to privacy in respect of allegations of the kind which underpin the BBC’s disclosures (ibid, emphasis in original); (d) the information was accurate (ibid, [289]) but the BBC’s methods of obtaining it were questionable, though this weighed only very lightly in Sir Cliff’s favour (ibid, [292], [296]); and (e) the broadcasts were presented with “a significant degree of breathless sensationalism” which “went in for an invasion of Sir Cliff’s privacy rights in a big way” (ibid, [300], [301]). He left the question of the chilling of effect of any sanction to the discussion of quantum, which I will address in a future post. He also had regard to the BBC’s editorial guidelines (as a “relevant privacy code” within the meaning of section 12(4)(b) of the Human Rights Act 1988).

Taking all these factors into account, Mann J came “to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression” (ibid, [315]). (more…)

Cliff Richard v BBC – Part I – Police investigations and reasonable expectations of privacy

I just got to tell someone about the way I feel,
Shout it from the rooftop to the street,
And if I spread the word please tell me who’s it gonna hurt …

Sir Cliff Richard OBE in Sydney 2013 (element)1. Introduction
The words above are the opening lines of “Can’t Keep this Feeling In“, released in 1998 by Sir Cliff Richard [Sir Cliff], pictured left in a mellow pose at a concert in Sydney, Australia in February 2013. In August of the following year, arising out of an ongoing investigation into allegations of historic sex abuse, the South Yorkshire Police [the SYP] searched a property belonging to him in Sunningdale, Berkshire; and – on foot of a tip off from the SYP the previous month – the British Broadcasting Corporation [the BBC] gave the allegations and the search prominent and extensive television coverage. Sir Cliff was never arrested or charged; and, in June 2016, the Crown Prosecution Service [the CPS] decided that Sir Cliff would not face any charges. This decision was re-affirmed by the CPS the following September, following a full review of the evidence.

Meanwhile, in July 2016, Sir Cliff commenced legal proceedings against the SYP and the BBC, arguing that SYP’s leak to the BBC in July 2014, and the BBC’s coverage of the raid in August 2014, invaded his privacy and breached his data protection rights. Before the trial, SYP admitted liability and agreed to pay Sir Cliff £400,000 damages, plus costs (see Richard v BBC [2017] EWHC 1648 (Ch) (26 May 2017)). Earlier this week, in Richard v BBC [2018] EWHC 1837 (Ch) (18 July 2018) Mann J held that that Sir Cliff succeeded in his privacy claim against the BBC and awarded him £210,000 in general damages (£190,000 in compensatory damages, and £20,000 in aggravated damages), with some items of special damages to be decided at a future date. Because of the success of the privacy claim, Mann J held that he did not need to consider the data protection point.

There are three areas of interest in Mann J’s judgment: first, whether Sir Cliff had a reasonable expectation of privacy, having regard to Article 8 of the European Convention on Human Rights [the ECHR]; second, whether the BBC nevertheless were entitled to broadcast, having regard to Article 10 ECHR; and third, the quantum of damages awarded. I will deal with the question of Sir Cliff’s reasonable expectation of privacy in this post; and I will deal with the other two issues in subsequent posts [update: the post on the BBC’s Article 10 rights is here].

2. Article 8 ECHR and Sir Cliff’s Reasonable Expectation of Privacy
In the earlier Irish case of Hanahoe v Hussey [1998] 3 IR 69, [1997] IEHC 173 (14 November 1997) Kinlen J awarded Ir£100,000 damages (worth approximately €185,000 or St£165,000 today) against the Commissioner of An Garda Síochána (Ireland’s National Police and Security Service) for a similarly unjustified leak of a similarly high-profile search. Kinlen J held that the leak was an “outrageous interference” with the defendants’ privacy rights ([1997] IEHC 173 [69]) but awarded damages for misfeasance in public office as a species of negligence ([1997] IEHC 173 [67], [73]). The SYP’s settlement, and this week’s judgment by Mann J, show that the direct protection of privacy interests has evolved sufficiently that their indirect protection via other torts is no longer necessary.

As with the phone hacking cases (see Mann J at first instance; see also the Court of Appeal), Sir Cliff’s case was commenced in the Chancery Division of the High Court, presumably reflecting the fact that the modern English protection of privacy interests began, under the impetus of Article 8 of the European Convention on Human Rights, by pressing the equitable claim for breach of confidence into service. The process continued by shearing that claim of limitations that affected its ability to protect privacy interests, before transmuting it into a claim for misuse of private information separate from breach of confidence. This claim is now characterised as a tort. So, in the present case ([2018] EWHC 1837 (Ch) [264]), Mann J referred to “the English tort which essentially gives effect” to Article 8 ECHR. This tort turns on on whether the claimant has a reasonable expectation of privacy that has been infringed by the defendant (more…)

The Proportionality of Tobacco Packaging Restrictions on Autonomous Communication, Political Expression and Commercial Speech

QUB via NILQ
The Lanyon Building, QUB
from the NILQ cover
The Summer 2018 volume of the Northern Ireland Legal Quarterly has been published this morning. Just in time for tomorrow’s seminar, and building on my earlier paper in the QUT Law Review, it contains the following piece by me:

“A Little Parthenon No Longer: The Proportionality of Tobacco Packaging Restrictions on Autonomous Communication, Political Expression and Commercial Speech” (2018) 69(2) Northern Ireland Legal Quarterly 175-211

Abstract
This paper evaluates the constitutionality of statutory restrictions upon tobacco packing in Ireland. It concludes that public health and the protection of children constitute pressing and substantial reasons sufficient to justify the Public Health (Standardised Packaging of Tobacco) Act 2015 and Part 5 of the Health (Miscellaneous Provisions) Act 2017 as proportionate restrictions upon tobacco companies’ freedom of political expression protected by Article 40.6.1 of the Constitution and freedom of autonomous communication protected by Article 40.3.1.

In many respects, Ireland has been a world leader in tobacco control, from banning smoking in the workplace or in cars with children, to requiring standardised packaging. Part 1 introduces this article; it sets out the background to the 2015 and 2017 packaging legislation. Part 2 of this article, on restrictions, describes the restrictions in the packaging legislation. Part 3 of this article, on rights, provides a conspectus of the Irish constitutional speech rights engaged or burdened by these restrictions. This Part presents these rights as comprising a freedom of political expression in Article 40.6.1 of the Constitution and a freedom of autonomous communication in Article 40.3.1. Moreover, these two rights carry concomitant rights to keep silent and to be informed. Part 4 of this article, on reasons, considers the pressing and substantial reasons which the State may proffer to seek to justify the restrictions in the packaging legislation upon constitutional speech rights. Part 5 of this article, on standards of review, considers the extent to which the restrictions in the packaging legislation, motivated by concerns relating to public health and the protection of children, satisfy the current Irish version of the principle of proportionality. It also considers the extent to which the restrictions might satisfy other standards of review or scrutiny. Part 6 concludes this article, bringing together all of the strands of analysis in the previous Parts. And it concludes that, if the restrictions on constitutional speech rights in the Public Health (Standardised Packaging of Tobacco) Act 2015 and in Part 5 of the Health (Miscellaneous Provisions) Act 2017 are challenged by the tobacco companies, the courts will find that those Acts are constitutionally valid.

Attractive packaging is an important element of a product’s effective marketing. Indeed, so central has packaging been to the allure of smoking that Leonard Cohen could extol “the little Parthenon / of an opened pack of cigarettes”. Ireland has been in the vanguard of tobacco control worldwide. With the 2015 and 2017 packaging legislation, it continues to set a very important example. The constitutional validity of these packaging restrictions would underpin a crucial element of the Department of Health’s moves towards tobacco-free Ireland by 2025. And the pack of cigarettes, with large warning photos dominating standardized packaging, would be Cohen’s little Parthenon no longer.

An earlier version of the paper, under the title “Is Standardised Tobacco Packing a Proportionate Restriction on Constitutional Speech Rights”, was delivered at the ICON-S British and Irish Chapter Inaugural Conference, Trinity College Dublin, Ireland, on 5 September 2017.

Legal reforms and practical responses are necessary to protect freedom of speech

Sunday Independent front page 12 NovYesterday’s Sunday Independent (front page pictured left) was something of a bumper issue for freedom of speech. The Editorial argued that it’s time to level the media playing field, and called on the Joint Oireachtas Committee on Communications, Climate Action and Environment to take into account the challenges facing all of the media, not just radio and tv stations, in its deliberations on the future of the television licence fee. And there were three other interesting columns in the print edition that were published online last night. Fergal Quinn argued that, with a referendum looming, the media should champion free speech, and we must learn to tolerate open debate. Eilish O’Hanlon argued that no-one should need to beg the Government’s permission to express an unpopular opinion. And Ruth Dudley Edwards praised Conor Cruise O’Brien as a revisionist who cared about truth and as a patriot who kept free speech alive.

Last week, the Long Room Hub in Trinity College Dublin and the Heyman Center for the Humanities in Columbia University, New York co-hosted a series of events in Dublin and New York on the challenges fake news poses to modern society. In yesterday’s Sunday Independent, Breda Heffernan reported on one of the Dublin events that fake news is a dark menace to truth, democracy and discourse.

TLRHubHeadlines
Me, Andrea Martin, Todd Gitlin, Jane Ohlmeyer (Director, Long Room Hub), Fionnán Sheahan (click through for larger image)
The previous night, the Hub had hosted a (slightly controversial) Behind the Headlines event on freedom of speech: Where Journalism and the Law Collide at the Boundary of 21st Century Debate, featuring Fionnán Sheehan (Editor of the Irish Independent), Professor Todd Gitlin (of Columbia Journalism School), Andrea Martin (a media lawyer in practice in Dublin), and myself. Ryan Nugent reported in the Irish Independent the following day that traditional and social media are ‘not on a level defamation playing field’. Our four talks have been podcast on SoundCloud by the Hub; Todd’s talk is here; and, yesterday, the Sunday Independent published Andrea’s and mine. (more…)

Making headlines defending speech

Headlines & Fake NewsIn Trinity College Dublin, where I work, the Long Room Hub is the College’s Arts & Humanities Research Institute. It hosts over 250 events each year, including a discussion series entitled Behind the Headlines, which offers background analyses to current issues by experts drawing on the long-term perspectives of Arts & Humanities research. In particular, the series “aims to provide a forum that deepens understanding, combats simplification and polarization and thus creates space for informed and respectful public discourse.”

In the recent past, the series has featured discussions on artificial intelligence, Trump’s America, Syria, and Brexit (not once but twice). The next event in this series will be on Monday 6 November 2017, 6:30pm to 8:00pm, on

Freedom of Speech: Where Journalism and the Law Collide at the Boundary of 21st Century Debate

In a world where truth is under siege, freedom of speech has never been more important. But, as outrage and offense in public debate become a commodity for social media technology giants, the future of professional journalism in educating public opinion while challenging authority and power is increasingly under attack. …

This discussion is part of the ‘Fears, Factions and Fake News’ symposium held in conjunction with Columbia University and in partnership with Independent News and Media.

I am one of the four speakers; the other three are Professor Todd Gitlin (Columbia Journalism School, Columbia University), Dearbhail McDonald (Independent News and Media Group Business Editor) and Andrea Martin (media lawyer and speaker, MediaLawyer Solicitors).

Last Sunday, under the headline Major free speech symposium by INM, TCD and Columbia, the Sunday Independent ran a piece by Wayne O’Connor about the ‘Behind the Headlines’ discussion and the other events in the symposium. This provoked a response by Peter Murtagh in this morning’s Irish Times:

US academic pledges to defend free speech ‘with anyone’s funding’

Conference, partly funded by INM, has been criticised because of links to Denis O’Brien

A leading US academic due to speak at a conference partly funded by Independent News and Media has said he “will defend the right to seek truth and to campaign against any and all assaults on the freedom of speech”. Prof Todd Gitlin of Columbia University’s prestigious school of journalism will participate in a seminar on November 6th entitled Freedom of Speech – where journalism and law collide.

The conference has been criticised because of the links to Denis O’Brien, a leading INM shareholder and the owner of Communicorp, one of the biggest radio stations groups in Ireland. … Saying that he had not “previously heard” of Mr O’Brien, Prof Gitlin said: “Please be assured that in any setting, with anyone’s funding, I will defend the right to seek truth and to campaign against any and all assaults on the freedom of speech.”

So, an event about “behind the headlines” is making headlines itself. (more…)

Social media, open justice, and contempt of court

Social Media iconsI have a short op-ed in today’s Irish Independent, on the topic of contempt of court by social media, pointing out that there’s a fine line between commenting on and prejudicing a trial (registration required).

Here’s a rather longer version, with a few relevant links:

The law on contempt applies equally to all media, offline and online

Social media coverage of criminal trials raises profound constitutional issues, and may hasten legislation on contempt of court

Justice shall be administered in public, according to Article 34.1 of the Constitution. The full glare of a public hearing enables everyone to know that justice is being administered fairly, and impartially, and according to the evidence. It allows the press and the public to report on, to scrutinise, and to comment upon, the workings of the law.

Every person facing a criminal charge is entitled to a fair trial, according to Article 38 of the Constitution. So commentary that gives rise to a substantial risk either of serious prejudice to, or of prejudgment of, an active trial, can amount to contempt of court. This can be dealt with either by the judge during the trial itself (by charging the jury to ignore the comments, or penalising the commentator, or – in rare and extreme cases – stopping the trial, or some combination of these), or by a case taken by the Director of Public Prosecutions against the commentator after the trial.

There can be a fine line between reporting and commenting on an active trial, and prejudicing or prejudging it. (more…)

Daniel O’Connell and Free Speech: “speaking bold truths boldly and firmly”


O'Connell's home at Derrynane

A fascinating post on Daniel O’Connell and free speech was published on the excellent Irish Philosophy website last Monday, in honour of Daniel O’Connell‘s birth on 6 August 1775, near Cahirciveen, Co. Kerry; here’s an extract (emphasis added):

Given his political philosophy, it is not surprising that Daniel O’Connell was a champion of free speech. … [At] the Monster Meetings of the 1840s, … huge crowds gathered to hear O’Connell speak. … Though the meetings were orderly, the government grew worried trouble would break out. Sir Robert Peel outlawed the next Monster Meeting, planned for Clontarf on 8 October 1843. Though O’Connell called off the rally, he was still arrested and charged with conspiracy.

O’Connell spoke in his own defense, pointing out the “conspiracy” was neither secret nor criminal, arguing that calling such a movement as his a conspiracy would prevent improvement of any institutions …

Do not attempt to take away from your fellow subjects the legitimate mode of effecting useful purposes by public meetings, public canvassing — speaking bold truths boldly and firmly.

O’Connell was found guilty … The verdict was appealed to the House of Lords, reversed, and O’Connell left prison after three months, a hero in the fight for freedom of speech.

On the trial, see Report of the Irish State Trials, 1844 (Google Books).

On the appeal, see O’Connell v R (1844) 11 Cl & Fin 155, (1844) 8 ER 1061, [1844] EngR 880 (9 September 1844) (pdf); and see also the House of Lords Frees Daniel O’Connell on Myles Dungan’s blog.

On O’Connell generally, see Patrick Geoghegan King Dan: The rise of Daniel O’Connell, 1775-1829 (Gill and Macmillan, Dublin, 2008 | Amazon) and Liberator: The life and death of Daniel O’Connell, 1830-1847 (Gill and Macmillan, Dublin, 2010 | Amazon).

Oh no, not again – another heckler’s veto in Trinity

TCD Campanile, via WikipediaThe following headlines have caught my eye:

After Protest, Society for International Affairs Cancel Event with Israeli Ambassador (from the University Times)

and

Trinity College Dublin event involving Israeli ambassador cancelled (from the Irish Times)

Update (21 Feb 2017): Planned talk by Israeli Ambassador at Trinity College is cancelled after protests (from theJournal.ie)

I don’t have time to write a considered post about this right now, but I could not let it pass unremarked, so I will content myself for the time being with noting: oh no, not again.

Update (23 Feb 2017): The protest and cancellation garnered headlines in Israel (Algemeiner | Jerusalem Post | Jewish Press | Times of Israel here and here) and further afield (Yahoo! news – even Breibart, with typical hyperbolic misrepresentation)

The University Times updated their piece and headline: After Event with Israeli Ambassador Cancelled, Trinity Criticises “Unacceptable Attack on Free Speech”; the Irish Times ran a follow up: Trinity condemns ‘unacceptable attack’ on free speech; and the Hearld also ran a story: Anti-Israel protest is ‘antithesis of what Trinity stands for’. These pieces refer to a statement from the Provost:

Trinity College Dublin regrets attack on free speech

Dublin, Tuesday February 21st 2017 – Trinity College Dublin regrets that Israel’s ambassador to Ireland, HE Ze’ev Boker, was unable to take part in a question and answer session on Monday evening after protesters from inside and outside the university threatened to disrupt the event. The university regards what happened as an unacceptable attack on free speech.

Ambassador Boker had been due to address a student society on Monday but the event was cancelled before he arrived at the proposed venue amid security concerns. University officials had unsuccessfully tried to get the protesters to leave an area surrounding the door to a lecture theatre. The ambassador has been a regular and welcome visitor to Trinity since his appointment. He had dinner in the university earlier in the same evening and attended another event in Trinity last week.

Trinity’s Provost Patrick Prendergast criticised the protesters for preventing a guest from expressing his opinions. “This was most unfortunate and represents the antithesis of what Trinity stands for. Universities should be able to facilitate the exchange of ideas. The protesters have violated that fundamental belief. Trinity will remain a home for debate and we will do everything possible to make sure that efforts to suppress the free exchange of ideas do not succeed. I look forward to welcoming Ambassador Boker back to Trinity to speak again in the near future.

Hear! Hear!

Update (6 April 2017): from Trinity News:

Students for Justice in Palestine fined for protest at Israeli ambassador talk

College has also refused to accept a petition on behalf of the group

Students for Justice in Palestine (SJP) have been fined €150 following their protest of a talk, organised by the Society for International Affairs (SoFIA), given by the Israeli ambassador to Ireland. …