Mr Justice Eady this evening marked the launch of the new City University Centre for Law, Justice and Journalism with a lecture entitled “Protecting free speech in the context of the European Convention of Human Rights”. He described how
“the law of libel and slander gradually emerged in England in an attempt to strike a balance between what we would now think of as increasingly uninhibited rights of free speech and, on the other side of the scales, the rights of individuals to protect their reputations”
He emphasised that this is not about “state control”
“The laws of libel, contempt, privacy and confidentiality are rather concerned to address a quite different set of issues; that is to say, the fairest way to balance the competing rights and interests of individual citizens”.
He then dealt with the difference between the American approach and that now taken in Europe
“What we have to acknowledge, and the Americans do not, is the policy consideration now embodied in the Council of Europe’s declaration 1165 of 1998 that no one Convention right takes automatic precedence over any other. Such rights are not to be ranked in what they called “any hierarchical order” but are to be regarded as of equal value. Whether that is a good or bad ordering of priorities is not for me to say. It is simply the framework within which we all have to operate, at least for the time being …”
In relation to the “recent communications” revolution, he pointed out that English law takes the same approach as a number of other jurisdictions, for example Australia but concludes:
“What is plainly required is an international agreement to govern communications on the web and, in particular, to determine whether they are to be regulated by an agreed set of supra-national regulations or, if not, to provide a generally acceptable means of deciding which domestic law should apply to any offending publication. But clashes of law are undesirable and will only come increasingly to sour international relations. I would characterise this as essentially an international problem deriving from technical advances. It is obviously not a specifically English or UK issue”.
Mr Justice Eady then considered the “new legal landscape” in relation to freedom of expression and two types of uncertainty that arise:
“my first type of uncertainty. Our new human rights environment is conditioned by the European Convention and the Strasbourg jurisprudence. Let us be in no doubt that this is what the government of the day and the legislature wanted when they enacted the Human Rights Act 1998. Why I say that uncertainty is inherent in this new methodology is that individual judges are required to carry out a balancing exercise between competing Convention rights”.
The second type of uncertainty concerned areas of uncertainty in media law to which “we are entitled to have answers at the earliest opportunity”. He gave a number of examples including the status of the “rule in Bonnard v Perryman” and intrusions into privacy in public places.
His conclusion was as follows:
“There is a real need at the moment for a careful and principled assessment of where the law now stands, as well as of the direction in which it should be taken under the influence of Strasbourg jurisprudence. Certainty and clarity are goals to which we need to aspire. With so many issues yet to be resolved in the ongoing relationship between the law and journalism, there could be no more appropriate time for the launch of this new Centre. If I may say so, you will need to hit the ground running and I wish you well in your endeavours”.
The full text of the lecture can be found here.