Media Law

Sallie Spilsbury

• Publisher: Routledge-Cavendish
• Year: 2013
• eBook ISBN: 9781135343507
• Edition: 1
• Topic: Law
• Subtopic: Media & Entertainment Law
• Index: Law

The aim of this book is to analyse media law in relation to specific areas, both in terms of its practical application and its theoretical framework. Part 1 concentrates on the regulation of media content and is largely written from a pro media point of view. Its central tenet is how far does the English media enjoy freedom of expression and the way in which that impacts on how the media operates. It considers how the Human Rights Act 1998 impacts on the media.

Part 2 moves on to look at the regulation of the media industries as a whole. Part 3 focuses on day to day transactions for the media. In particular it focuses on provisions from typical media agreements and aims to provide a context for the law which has been outlined in Parts 1 and 2.

The structure of this book bridges the gap between a traditional textbook and practitioner work and provides a book which will be of interest to law degree and LPC students and practitioners.

PART 1

CHAPTER 1
THE HUMAN RIGHTS ACT 1998 AND THE MEDIA

Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress, and for the development of every man.¹

The Human Rights Act 1998 (‘the Act’) has now come fully into force throughout the UK on ² October 2000.2 It is likely to have far-reaching implications for most, if not all, areas of civil and criminal law, including the law affecting the media.

The objective of the Act is stated to be ‘to give further effect’³ in UK law to the majority of the rights provided for in the European Convention of Human Rights (‘the Convention’). The Act does not create new substantive rights under domestic law, but it makes existing Convention rights more immediate and relevant.

THE CONVENTION

The Convention is a statement of rights and freedoms drawn up in 1950 in the aftermath of the Second World War. Its full title is ‘the Convention for the Protection of Human Rights and Fundamental Freedoms’. The objectives of the Convention are set out in the Convention’s preamble. They include the maintenance and further realisation of human rights and fundamental freedoms, and the maintenance of effective political democracy. Section 1 of the Convention is headed ‘Rights and Freedoms’ and provides for a number of rights for citizens of Convention countries. Some of the rights and freedoms established by the Convention are absolute and others are subject to specific limitations. Where they apply, the limitations are designed to ensure respect for competing rights and freedoms or for other legitimate public purposes.

The Convention rights are as follows:

Art 2 – right to life;

Art 3 – prohibition of torture;

Art 4 – prohibition of slavery and forced labour;

Art 5 – right to liberty and security;

Art 6 – right to a fair trial;

Art 7 – no punishment without law;

*Art 8 – right to respect for private and family life;

*Art 9 – freedom of thought, conscience and religion;

*Art 10 – freedom of expression;

Art 11 – freedom of assembly and association;

Art 12 – right to marry;

*Art 13 – right to an effective remedy (for the violation of rights and freedoms provided for in the Convention);⁴

Art 14 – prohibition of discrimination on any ground (in relation to the rights and freedoms provided for in the Convention);

Art 15 – derogation in times of emergency;

Art 16 – restrictions on political activity of aliens;

Art 17 – prohibition on abuse of rights;

Art 18 – limitation on use of restrictions of rights.

The rights marked * are of particular relevance to media law and will be considered in further detail in this chapter and throughout this book.

There have been a number of protocols to the Convention since the early 1950s which have provided for additional rights and freedoms. The first protocol, which has been ratified by the UK, provides for the following additional rights:

Art 1 – right to peaceful enjoyment of possessions/property;

Art 2 – right to education;

Art 3 – right to free elections.

The sixth protocol provides, inter alia, for the abolition of the death penalty.

Section II of the Convention provides for the establishment of a European Court of Human Rights to function on a permanent basis.⁵ The Court was established at Strasbourg in 1959 to hear petitions against States who are signatories to the Convention. Complaints to Strasbourg may only be brought against Contracting States, rather than against private individuals or organisations who are domiciled or resident in those States. Since 1966, individual claimants in the UK have had the right to complain directly to the European Court in Strasbourg about alleged breaches of the Convention. Where a country is found to have violated a Convention right, the court’s judgment does not have the automatic effect of changing the national law of the Contracting State, but the State is obliged to change its law in line with the Convention.

THE POSITION UNDER ENGLISH LAW BEFORE THE ACT CAME INTO FORCE

The Convention was ratified by Britain in 1951, but has never been directly incorporated into UK law. The lack of incorporation into UK law has meant that, whilst private litigants could, in some circumstances, complain to the European Court in Strasbourg that their Convention rights had been violated, they could not make any such complaint to the British courts. There was no domestic cause of action for breach of a Convention right.

Litigants who took their cases to Strasbourg faced a lengthy and expensive journey. On average, it took five to six years to get judgment from the European Court from the time of the petition being lodged, and all national avenues for complaint and appeal must previously have been exhausted.

The Convention, whilst not part of national law, has had a role to play prior to October 2000. By way of example, where the terms of legislation were ambiguous, the Convention might be used as an aid to construction.⁶ In addition, increasingly in the field of media law, the judiciary have had regard to the Convention in their decision making (although, in some instances, ‘have regard to’ has amounted to little more than paying lip service to). But there has been no obligation on the courts to apply the Convention or to follow Strasbourg jurisprudence in reaching their decisions.

THE SCHEME OF THE ACT

The Act does not incorporate the Convention itself into UK law. It does, however, elevate the Convention and the jurisprudence of the Strasbourg Court from the sidelines to a central place in domestic law.

The focal point of the Act is the so called ‘Convention rights’. These are defined in s 1 of the Act as meaning the rights set out in Arts 2–12 and 14 of the Convention, the rights provided for in the first protocol and the abolition of the death penalty contained in the sixth protocol. There is also provision for new rights to be added if further protocols to the Convention are ratified by the UK in the future.

The key effects of the Human Rights Bill were summarised by the Lord Chancellor in the following terms:

The Bill is based on a number of important principles. Legislation should be construed compatibly with the Convention as far as possible. Where the courts cannot reconcile legislation with Convention rights, Parliament should be able to do so – and more quickly, if thought appropriate, than by enacting primary legislation. Public authorities should comply with Convention rights or face the prospect of legal challenge. Remedies should be available for breach of Convention rights by a public authority.⁷

THE MAIN PROVISIONS OF THE ACT

Interpretation

Duty to have regard to Strasbourg jurisprudence

• Section 2 of the Act provides that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any relevant jurisprudence of the European Court of Human Rights, whether judgment, decision, declaration or advisory opinion and whether or not it relates to a decision involving the UK. The national court or tribunal must also take into account any opinions or decisions of the European Commission of Human Rights and decisions of the Council of Ministers (although the Commission and Council ceased to have a judicial function in 1998). Significantly, the obligation is to ‘take into account’, rather than ‘to follow’. Strasbourg jurisprudence will not be binding on domestic courts in the same way as we think of precedents under English law.

Example

The Daily Tabloid is sued for defamation by the pop star Sharon Sparkle. The Daily Tabloid might claim in its defence that the defamation action interferes with the Convention right to freedom of expression. Under s 2 of the Act, the court must take into account the jurisprudence of the European Court of Human Rights on the question whether the defamation action is a legitimate restriction on the right to freedom of expression. The court does not have to follow that jurisprudence, but it is under an obligation to take it into account.

The Lord Chancellor explicitly rejected the idea of including a statutory formula in the Act providing that Convention jurisprudence should bind the national courts. He observed that ‘our courts must be free to develop human rights jurisprudence by taking into account European judgments and decisions, but they must also be free to distinguish them and to move out in new directions to the whole area of human rights law’.⁸

This move away from binding precedent is also in line with the approach of the Strasbourg Court itself, which tends not to regard its own decisions as binding on itself. For example:

1. the Convention has often been described by the Strasbourg Court as a ‘living instrument’,⁹ to be interpreted afresh in the light of prevailing conditions of the day, rather than by reference to earlier precedent;
2. the doctrine of the margin of appreciation is a further reason for rejecting the idea of a binding system of precedent under Strasbourg case law. The margin essentially allows each Contracting State leeway in determining what is compatible with the Convention, provided always that the actions of the State conform to the objectives of the Convention. The margin of appreciation is considered further below.

Statutory interpretation

• Section 3 of the Act provides that, so far as it is possible to do so, primary legislation (such as Acts of Parliament) and subordinate legislation (for example, statutory instruments and Orders in Council) must be read and given effect to in a way which is compatible with Convention rights. This will apply whether or not the legislation was enacted before the Act came into force. The obligation to construe legislation in line with the Convention is not limited to courts and tribunals. Everyone should construe legislation in this way.
  Where primary legislation cannot be given effect to in a way which is compatible with Convention rights the legislation is not invalid. However, under s 4, certain courts¹⁰ have discretion to make a declaration of incompatibility¹¹ where a provision of primary legislation is incompatible with a Convention right. The Crown has a right to notification and an opportunity to intervene in any proceedings where the court is considering whether to make a declaration of incompatibility.¹²

A declaration of incompatibility will not affect the validity of the legislation,¹³ which will continue to apply unless and until the legislation in question is amended. Nor is the declaration binding on the parties to any legal proceedings in which it is made.

During the second reading of the Bill in the House of Commons, the Home Secretary, Jack Straw, observed that ‘a declaration of incompatibility will not affect the continuing validity of the legislation in question. That would be contrary to the principle of the Bill. However, it would be a clear signal to the Government and Parliament that, in the court’s view, a provision of legislation does not conform to the standards of the Convention … it is likely that Government and Parliament would wish to respond to such a situation and would do so rapidly’.¹⁴

In relation to subordinate legislation, where it is not possible to construe such legislation in a way which is compatible with the Convention, the court should treat the subordinate legislation as invalid, unless the primary legislation under which the subordinate legislation was made prevents the removal of the incompatibility (when considering whether the primary legislation prevents the removal of the incompatibility, any possibility of revocation of the subordinate legislation should be disregarded).¹⁵ Where the primary legislation does prevent the removal of the incompatibility, the court has no discretion to find the subordinate legislation invalid and must give effect to it.

The obligation to construe legislation in line with the Convention is likely to have far-reaching effects on the way that the courts interpret legislation. Interpretations of legislation which were made before the Act came into effect may no longer apply. The courts are likely to move away from a technical way of construing legislation which focuses on the detailed meaning of particular words. Instead, it is probable that the courts will adopt a broader, more purposive construction dependent on the overall objective of the statute and the relevant Convention right.¹⁶ Lord Cooke described the change in approach in the following terms:

The clause will require a very different approach to interpretation from that to which UK courts are accustomed. Traditionally, the search has been for the true meaning; now it will be for a possible meaning that would prevent the making of a declaration of incompatibility¹⁷ … in effect, the courts are being asked [to apply] a rebuttable presumption in favour of the Convention rights …

Jack Straw, the Home Secretary, assured Parliament that it was not the Government’s intention that the c...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Part 1
• Part 2
• Part 3