An extract from The Media and Entertainment Law Review, Edition 2

Free speech and media freedom

i Protected forms of expression

The HRA provides that everyone has the right to freedom of expression but this freedom 'may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society'. Those restrictions may be:

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.

Other statutes provide specific exceptions to the right to free speech and liability with respect to certain speech types. For example, Section 4 of the Public Order Act 1986 states that it is an offence for a person to use 'threatening, abusive or insulting words or behaviour that causes, or is likely to cause, another person harassment, alarm or distress', speech that is deemed to incite 'racial and religious hatred', as well as 'hatred on the grounds of sexual orientation'. The Terrorism Act 2006 criminalises the encouragement of terrorism, which includes making statements that endorse terrorist acts.

ii Newsgathering

From 2009 to 2011 the UK was rocked by the News of the World phone hacking scandal, concerning journalists at the UK publication News of the World intercepting and hacking into the voicemails and phones of private individuals (celebrities and the like). Despite a public inquiry and various legal cases where the individuals concerned were awarded damages for invasions of privacy, the UK did not introduce a mandatory regulatory regime for the press.

A recent landmark case in this area concerned a suspect's right to privacy in the context of publication of details of a search made by the police. In this case, the police searched the premises of famous singer Sir Cliff Richard in connection with allegations of child sex abuse. The UK's national broadcaster (the BBC) obtained advance warning of the searches, filmed the event and widely publicised it. Sir Richard successfully sued the BBC for invasion of his rights to privacy. The court held that Sir Richard did have a reasonable expectation of privacy both as against the investigating police force and the BBC and that the press right to freedom of expression in reporting the search was outweighed by his right to privacy. Sir Richard was awarded very substantial damages.

In terms of the government's approach to freedom of the press, a recent example concerned the apparent blacklisting by the Ministry of Defence of an investigative journalist who was seeking comment in relation to the UK's involvement in Yemen for Declassified UK, a website focusing on foreign and defence policy stories. As stated above, the UK is a member of the Council of Europe and a signatory to the ECHR. The Council operates a platform for the protection of journalism and safety of journalists and the UK's conduct led to the issuance of a level two media freedom alert, prompting the Secretary of State to issue a statement to Parliament apologising and committing to uphold the standards of fairness and impartiality in the treatment of journalists and the media.

iii Freedom of access to government information

Access to government information is provided under the Freedom of Information Act 2000 (FOIA). FOIA requires certain public authorities to routinely publish prescribed information about their actions as well as respond to requests for information from third parties. Anyone can make a request for information regardless of whether they are a corporate entity or a natural person. FOIA does not cover every organisation that receives state funds but it does capture the vast majority of public bodies (e.g., central and local government, police forces and state schools). All recorded information held by or on behalf of a relevant public body is covered by FOIA.

There are rules governing what information must be disclosed and how disclosure should take place. At its core, information must be released unless there is a good reason not to. The Information Commissioner's Office is charged with investigating complaints concerning public bodies who are accused of not complying with their obligations under FOIA.

Freedom of information requests have been used by journalists in many notable cases. Probably one of the most well-known was the 2009 MP's expenses scandal, which eventually led to a number of political resignations and some prison sentences.

iv Protection of sources

The UK does not have an overarching shield law for journalistic sources. Instead, the protection is fragmented across different pieces of legislation.

The ECtHR has considered the UK's approach to this issue, including in the key case of Goodwin v. United Kingdom, where it emphasised that the protection of sources 'is one of the basic conditions for press freedom' intrusion of which should only be justified where there is an overriding requirement in the public interest. The high principle set out in Goodwin has been recognised by the English courts in subsequent national cases.

In terms of the availability of a court order to disclose a source, the key legislation is the Contempt of Court Act 1981 (CCA). Section 10 states that '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 he is responsible'. There are, however, exceptions to this presumption where the disclosure of information will be deemed necessary in the interests of justice, in the interests of national security or for the prevention of disorder or crime.

In the recent case of Various Claimants v. News Group Newspapers Ltd, a journalist was held to be entitled to protection under Section 10 of the CCA as a source even though his identity was known. It was deemed irrelevant that the source was himself a journalist or that he was paid, and paid on a large scale.

The powers of the police with respect to journalistic sources and information are governed by the Police and Criminal Evidence Act (PACE). Pursuant to PACE, police are able to search premises where an offence has been committed to obtain evidence but journalistic material is carved out of these powers and may only be seized by the police via a specific procedure requiring an application for a warrant. However, the police have used other powers to obtain journalistic material. In Miranda v. Secretary of State for the Home Department, Mr Miranda (the partner of a UK investigative journalist reporting on the Snowden affair) challenged his detention by police under the Terrorism Act 2000. Mr Miranda was carrying encrypted material provided by Edward Snowden and relating to the mass surveillance of internet communications by the UK and US intelligence agencies. The Court of Appeal held that in this instance the stop was properly exercised and that any journalistic rights were outweighed by the interests of national security. However, the stop powers of the Terrorism Act per se were held to lack sufficient legal safeguards to be in line with Article 10 rights to freedom of expression in respect of journalistic information or material.

In terms of surveillance and interception, the ramifications of the Snowden affair with respect to protection of journalistic rights are still ongoing. The law was updated and the Investigatory Powers Act 2016 (IPA) was introduced. That legislation has enhanced safeguards, including a double lock for warrants, which require authorisation by the secretary of state and approval by a judge. An Investigatory Powers Commissioner was also created. In 2018 the ECtHR held that the UK's previous regime for interception of internet communications violated Article 10 ECHR because it did not have adequate safeguards for journalistic material. Although this judgment concerned the previous legislation, it has a potential impact on the lawfulness of the IPA given that the IPA echoes certain aspects of the previous legislation. Indeed there have been various legal challenges of the IPA since its enactment.

v Private action against publicationDefamation

English laws of defamation are respected worldwide, leading to the English courts being a forum of choice for the protection of reputation.

Defamation is a ground to challenge the lawfulness of a publication. Figures released by the Ministry of Justice show an upward trend, with a 22 per cent increase in issued defamation claims in 2019 compared to 2018. This is despite the introduction of the Defamation Act 2013 (DA 2013), which many predicted would reduce the number of claims because it imposed a higher serious harm threshold for claims and sought to curtail forum shopping, among other things.

To establish defamation, the claimant must show that the statement complained of:

  1. is defamatory: it lowers the claimant in the estimation of right-thinking members of society and has caused, or is likely to cause, serious harm to the claimant's reputation (the new serious harm threshold);
  2. identifies or refers to the claimant; and
  3. was published by the defendant to a third party.

Both individuals and corporates have rights in defamation and there are no exclusions, as there are in other jurisdictions, for political or famous people or for corporations over a certain size.

To pass the new serious harm threshold a corporate claimant has to show serious financial loss has been or is likely to be caused.

The UK Supreme Court recently confirmed that to pass the serious harm threshold a statement must not only have the tendency to cause serious harm but the serious harm must be demonstrated on the actual facts. There is no longer a presumption of harm based on the words of a statement alone. Factors such as the extent of the publication, the claimant's pre-existing reputation and the nature of the audience for a statement may be relevant.

The substantial truth of a statement operates as a defence to a claim. Other defences of importance to the media are honest opinion and publication in the public interest. The public interest defence requires the statement to be on a matter of public interest and the defendant must reasonably believe that its publication was in the public interest. In determining this, the court will have regard to all the circumstances of the case. The UK Supreme Court has recently ruled that the previous checklist of responsible journalism factors are no longer relevant to the question of whether a statement was on a matter of public interest and should not be used as a definitive checklist.

The DA 2013 was designed to curb claims with a tenuous connection to the UK. To sue a non-EEA defendant, a claimant must show that of all the jurisdictions where a claim could be brought, the English jurisdiction is clearly the most appropriate place. This is of increasing relevance given the multijurisdictional nature of internet publications and the increased prevalence of individuals who have reputations in more than one jurisdiction. This issue was recently considered by the Court of Appeal. Dr Wright, the claimant, was an Australian national, a citizen of Antigua and Barbuda and had moved to the UK in 2015. The court acknowledged that Dr Wright had an international reputation but held that the UK was not clearly the most appropriate place for the claim. The facts that the publication was published nearly four times as frequently in the US and that the claimant's important business relationships were in the US were relevant here.

Remedies for a defamation claim include damages, a final injunction, publication of a summary of the court's judgment and an order that a website operator removes a defamatory statement or a third party ceases distribution. The court does not order publication of an apology.

There is a long-standing general rule that leans heavily on the availability of interim injunctions to prevent publication. The rights to freedom of expression are given weight in this assessment and the court's position is that if a defence can be raised, then the publication should be allowed and the claimant can be compensated in damages if the statement is later held to be defamatory.

Recent noteworthy claims in the courts of England and Wales include actor Johnny Depp's defamation claim against The News Group Newspapers, publishers of The Sun and Melania Trump's defamation claim against the Daily Mail which settled for a sum of around £2.4million, making it one of the highest settlements to go through the English courts.

Alternative legal actionsMisuse of private information

Misuse of private information (MOPI) claims concern the unauthorised use and disclosure of private information, for instance where a newspaper wishes to run a story exposing aspects of the private life of an individual. The claimant must first have a reasonable expectation of privacy in relation to the disclosure. If so, the court will determine whether it is necessary and proportionate to limit the claimant's privacy rights in favour of freedom of expression.

The court will consider various factors, including the nature of the information and to what extent publication of detail is necessary; reporting the fact a politician is having an affair may be justified in the public interest, but publication of photographic images may be unnecessary.

Gulati is a landmark case. The case relates to the phone hacking scandal and concerned the damages available to victims of the hacking by virtue of the invasions of their privacy. The court held that damages were available both for the distress caused and also for the act of privacy invasion itself. The awards given to the claimant individuals represented a considerable uplift on previous awards, with the highest at approximately £250,000. This, among other factors, makes a MOPI claim an attractive option for claimants, particularly where it may be hard to satisfy the serious harm threshold for a defamation action.

Data Protection Act 2018

There has been a growing trend for defamation and privacy cases to be framed as claims for breach of the Data Protection Act 2018 (which implements the General Data Protection Regulation, GDPR). The GDPR governs the manner in which personal data may be lawfully processed. The GDPR therefore has application when the publication in question concerns personal data about an individual.

Landmark cases in this area concern the compensation available in such cases. In Vidal-Hall v. Google Inc, the courts held that damages for distress are recoverable even if material loss is not sustained. Further, Lloyd v. Google LLC confirmed that compensation is recoverable for a contravention of a data subject's control of its data, even if this does not cause material damage or distress.

vi Government action against publication

There have been recent tensions between the government and the media due to the government's handling of Brexit and the covid-19 pandemic. On 3 February 2020, political journalists boycotted a government briefing after certain publications were banned from attending, stating that the restrictions curtailed press freedom.

In addition, as previously stated, the Council of Europe recently issued a level two press freedom alert after the UK Ministry of Defence briefly blacklisted an independent media organisation, Declassified UK, due to its coverage of the crisis in Yemen.