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MoJ proposals to strengthen journalists’ freedom to report is based on a fundamental misreading of ECHR judgment – Chris Pounder

The Ministry of Justice (“MoJ”) Consultation,  “Human Rights Act Reform: A modern Bill of Rights” (the “Consultation”), contains proposals that tips the balance between “respect for private and family life.” (A.8) and freedom of expression and to impart information (A.10) in favour of the latter (A.10).

Quoting a single ECHR judgment (ML v Slovakia [2021] ECHR 821) as providing justification for the changes, the Consultation fails to realise the judgment does the precise opposite.   It soon becomes clear that a case which initially appears to be one where the public interest in the information is high in fact does the oppose.  The tabloid journalists concerned did not even exhibit a basic level of journalistic integrity.

The Consultation is also ignorant to the impact of its proposals on the parts of the UK_GDPR relevant to the A.8/A.10 balance (e.g. the A.17(3)(a) exemption from the right of erasure; the journalists code of practice being prepared by the ICO; the Special Purpose Exemption in Schedule 2, Part 5).

These omissions undermine the quality of the Consultation’s arguments.

The current balance between A.10 and A.8

The balance between the protection of private and family life and the freedom to impart information is equally balanced and one right does not take precedence over the other.  This position was set out a recent case before the Supreme Court (ZXC v Bloomberg [2022] UKSC 5).

“Both [rights] reflect important civilised values, but, as often  happens, neither can be given effect in full measure without restricting the other.  How are they to be reconciled in a particular case?  There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other.  The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other” [57].

The Bloomberg case concerned a US citizen who worked for a company which operated overseas that became subject of a criminal investigation.  A confidential Letter of Request from the relevant authorities was sent seeking information and copies of documents; the Letter expressly requested that its existence and contents remain confidential.

Bloomberg obtained a copy of the Letter, and published an article based on the Letter reporting that information had been requested in respect of an individual (ZXC) and detailing the matters in respect of which ZXC was being investigated.  Bloomberg was later sued by ZXC for misuse of private information; Bloomberg lost and eventually their Appeals reached the Supreme Court.

The Supreme Court came down on the side of ZXC stating that in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation”.

Note that the use of the words  “in general” shows that there is a presumption that persons under criminal investigation have their privacy maintained during that investigation unless there is a good reason for this not to be the case (e.g. as in historic sexual abuse investigations where there may be a need for other victims to come forward).

This position is current public policy, the argument being that there is a negative effect on an innocent person’s reputation if he or she is publicly identified as being investigated for a crime which is not even before the courts (i.e. prior to any charge).  Additionally,  publicity could impact on the investigation (e.g. by alerting the actual criminal to the existence of an investigation).

As can be imagined, the Supreme Court judgement has not gone down well with the media, who prefer the default position should always be in favour of openness rather than secrecy.  Naturally, they are quite happy that there is a presumption that those under investigation can be identified by the press unless there is a good reason for the opposite.

That is why the question of “which view prevails?” (i.e. public disclosure in the press) depends on the facts of the case – which of course is the current balance between A.8 and A.10.

The MoJ proposals

The Consultation argues that the freedom to impart information to the public should prevail in many circumstances.  This is spelt out by the Consultation in the following terms:

“..the Bill of Rights legislation should contain a stronger and more effective provision, making it clear that the right to freedom of expression is of the utmost importance, and that courts should only grant relief impinging on it where there are exceptional reasons”. (para 213; my emphasis)

In justification of this position, the Consultation does not consider any UK judgement where the press have found a problem with A.8.  This is surprising as there are over a 100 such cases and one would have thought that the Consultation would have been spoilt for choice (see references for a list of cases dating from 2010).

Instead the Consultation justifies the need for change by citing the ECHR judgement in ML v Slovakia ([2021] ECHR 821) as follows:

“But at the same time, the case law of the Strasbourg Court has shown a willingness to give priority to personal privacy, including in a recent judgment finding that media reporting about a deceased priest’s convictions for child sexual abuse and public indecency could interfere with his mother’s right to private life, drawing, in part, on the so-called ‘right to be forgotten’ invented by the Court of Justice of the European Union” (para 206 of Consultation)

I suspect the authors of the Consultation have not read the judgement.  The press reports in question were described as “concentrating on sensational and, at times, lurid news, intended to titillate and entertain”(ML [53]).  It concluded that “as well as being rather provocative and sensationalist, the articles in question could hardly be considered as having made a contribution to a debate of general interest” [54].  Reliance on this kind of material hardly helps the case for more protection of freedom of expression.

I also suspect the reference to the “so-called right to be forgotten” in the above has been included for pejorative effect.  The Consultation omits the fact that this right exists in the UK_GDPR as the right to erasure – with an exemption on the grounds that the freedom to impart information to the public should prevail (see A.17(3)(a) of the UK GDPR).

Finally, the authors of the Consultation apparently failed to realise that the priest is deceased; the “so called right to be forgotten” does not apply and is completely irrelevant.

ML v Slovakia

In practice,  the ML v Slovakia case is really about two questions:

  • can personal information about the dead fall within the scope of Article 8 of the Convention out of respect for the feelings of the deceased’s relatives? (The Court’s answer is “yes”).
  • If so, to what extent can personal information about the dead be published by the press. (The Court’s answer is “it depends on the facts of the case”).

The press stories under scrutiny related to a Roman Catholic priest who had been cautioned / convicted in relation to sexual abuse and disorderly conduct (consensual oral sex in a public place).  All criminal convictions / cautions had become spent and the priest died in 2006, possibly by suicide.

In 2008, three tabloid newspapers published articles about the priest’s conviction for sexual abuse and a possible link to his supposed suicide. The articles were headlined: “Priest confessed to abuse of minor boys. Secret of priest’s suicide”, “Priest abused Roma boys. He confessed before his suicide”, and “Protected priests. The Church provided a guarantee to get a paedophile priest out of prison”.

The articles asserted that the priest had confessed to the bishop and the Church then offered a the authorities a guarantee of future good behaviour; that explained how the priest avoided prison. Suicide was reported as a fact.

Given recent history of the Church on this subject, there appears to be a strong public interest in this story.

So what went wrong?

As far as the journalists were concerned, their freedom of expression arguments went pear shaped because they could not present any evidence backing up their stories.  For example, the bishop said he wasn’t contacted by the press about the case, evidence of police contacts were lost, and internet allegations about the priest (e.g. suicide) were reported in newspaper stories as facts.

To give a flavour of these issues, the judgement notes:

The journalist M.K. referred to a very good source who had provided him with a written document, and to a police record concerning the questioning of the applicant’s son; he claimed to have verified the authenticity of the written document but did not remember any details.  M.K. asserted that he had also contacted police spokespersons and had sent an email to the bishop’s office, but he was not sure whether he had saved their exchange” ([10]).

The result was that the Slovakian District Court ordered each of the defendants (i.e. the journalists) to publish a formal apology to the priest’s mother for having published untrue allegations about her late son, but dismissed her financial claims.  This judgment was then subject to a series of appeals before the case eventually ended up at the ECHR.

I give five quotes from the judgement about the journalistic standards the ECHR encountered; they need no further embellishment from me except to emphasise some key words:

  • Although the journalists must be afforded some degree of exaggeration or even provocation, the Court considers that the frivolous and unverified statements about the applicant’s son’s private life must be taken to have gone beyond the limits of responsible journalism” (para 47).
  • “… the Court is ready to accept that the distorted facts and the expressions used [by the press] must have been upsetting for the applicant and that they were of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son”.  (para 48)
  • “…the Court reiterates that there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life”.(para 53)
  • [with respect to the public interest] “….the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression.   However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life”. (para 53)
  • “Thus, the Court finds that, as well as being rather provocative and sensationalist, the articles in question could hardly be considered as having made a contribution to a debate of general interest”. (para 54)

Concluding comment

So, given the above, do you think ML v Slovakia supports the Consultation’s position?  Is the journalism identified by the judgement be the kind of journalism that UK law should protect?

I find it astonishing that the Consultation attempts to base its arguments to rebalance A.8/A.10 on a case that is so critical of journalistic ethics and standards when there is a hundred British cases to choose from.  It adds to the general concern I have expressed previously: the lack of evidence that supports the proposed changes to the Human Rights Act.

I suspect a main driver for change is the same one that scrapped the second part of the “Leveson Inquiry – Report into the culture, practices and ethics of the press”.   It is a “thank you for your continued support”, aimed at the Brexit supporting tabloid press, from a Government that has serious issues concerning honesty, truth and credibility.

This post originally appeared on the Hawktalk Blog and is reproduced with permission and thanks

1 Comment

  1. Christopher Whitmey

    Thanks for an excellent and timely article. I’d previously seen ZXC v Bloomberg and thought it a timely judgment. I’m emailing the MoJ to check they are going to take it into account – also your article! I’ll copy in Inforrm

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