Freedom of Expression - Case Study Example

Using examples from recent cases discuss which right prevails in Britain, the right to privacy or the right to free speech. Freedom of expression,also known as the right to free speech, is enshrined in Article 10 of the Human Rights Act of 1998 (hereinafter, HRA), which states that 'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.' There can be no doubt that freedom of expression is of paramount importance.1 While the right to free speech is a crystallized principle that has been place almost since the beginning of time, enjoying a cherished position in the bill of rights of virtually all civilized legal systems, the interpretation of what constitutes free and protected speech still has yet to be perfectly refined. This provision has been invoked many times over in the course of history, whether within the European Union or outside, successfully and unsuccessfully; and Courts have had many opportunities to set standards and devise guidelines to determine if the speech in question should be protected or not. It is important to note that Article 10 protects not merely the substance of the idea but also the form that they are conveyed. This was the ruling in the case of Oberschlick v. Austria2, where the Court held that the form of the expression should also be considered protected speech. This is bolstered by the fact that in the case of Stevens v. United Kingdom3, the concept of expression covers even "actions". It becomes more difficult when the right to free speech competes with another right, in this case, as will be elucidated on more fully later, the right to privacy. In "easy" cases, all that should be done is look through jurisprudence until one finds the applicable case with similar facts. In "hard" cases with novel facts, the role of the judge becomes infinitely more difficult. This is evident, for example, in a case wherein a judge determined that the right to privacy is trumped by the fact that there were "legitimate aims to be pursued," as in the case of A v. The United Kingdom,4 where a Member of Parliament, after identifying the applicant and giving her exact address, proceeded to describe her as a "neighbor from hell". In recent times, particularly given the public's voracious appetite for information on the private lives of celebrities and the entertainment media's eagerness to satisfy such an appetite, the tension between the right to free speech and the right to privacy grows sharper. Article 8 of the Human Rights Act states that, "Everyone has the right to respect for his private and family life, his home and his correspondence." It must be underscored that "although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves." It is cause for reflection that three of the recent famous cases involving privacy and free speech were decided in favor of privacy. This paper will discuss first the case of Princess Caroline of Monaco, which was resolved with finality in the European Court of Human Rights. After which, the case of Michael Douglas, Catherine Zeta-Jones and Ok! Magazine against Hello! Magazine will be discussed. Last would be the case of Naomi Campbell. In the first case, Von Hannover v. Germany5, Princess Caroline invokes her right to privacy against several entertainment magazines that published pictures of her in her private moments. A few of these photos showed her with actor Vincent Lindon, and such photos were captioned "these photos are evidence of the tenderest romance of our time." In ruling against her, the Federal Court of Germany held that, "The public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behaviour on their official engagements." However, when the case was brought to the European Court of Human Rights, it ruled in favour of Princess Caroline. The Court said: Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of "ideas", but of images containing very personal or even intimate "information" about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution. What is particularly troubling about this decision is the notion that the arbiter is in a position to decide what forms of expression may be considered "ideas" and are thus deserving of protection, and what forms of expression are not ideas, and thus are not covered by the Constitutional guarantees of free speech. Traditionally, of course, free speech and its interpretation vis a vis other values have always been problematic. The boundaries are ever-shifting; and internally, the judge will be trying not only to apply the law, but to subject the text or speech in question to her own subjective inquiry in order to determine the intent of the message-bearer and what the material was trying to say. Social and political values inevitably come to the fore. To quote legal writer Thomas Streeter (1995), "It is in the character of language, in other words, that a judge will never be able to look at the text of the Bill of Rights and legal precedents to decide whether or not flag burning is protected by the First Amendment; he will always in one way or another be forced to make a choice about whether or not he thinks it should be protected, and will always be faced with the possibility that a reasonable person could plausibly disagree." What distinguishes the area on free speech from other "legally-indeterminate" areas is that it is inextricably intertwined with and largely dependent on language which, as many eminent linguists have said, is arbitrary in the sense that meanings cannot be derived from anything logically-inherent in the words. These meanings are merely "assigned meanings" born of the collective experiences of people in a community and this system of interpretation is never static. As stated by Streeter, "Aside from language in general and perhaps some very deep-level aspects of syntax, there is very little that is universal, neutral, or mechanical about human languages." But of course, it is one thing to be conscious of the fact that the law is not the bulwark of stability it purports to be and that it is in fact made up of several indeterminate gray areas; and quite another to give this notion judicial imprimatur -- such that judges would appear to be given unfettered discretion in deciding what constitutes ideas and what does not. In Von Hannover, where a unanimous verdict was reached, the Court proceeded to say: The Court considers that a fundamental distinction needs to be made between reporting facts - even controversial ones - capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of "watchdog" in a democracy by contributing to "impart[ing] information and ideas on matters of public interest (Observer and Guardian, cited above, ibid.) it does not do so in the latter case. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned (see Plon (Socit), cited above, ibid.), this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life. It would seem, therefore, that a criterion set out by this decision is that for a speech to be protected, it would have to contribute to public or political debate. While of course it is hard to disagree with the Court that in this particular issue very little contribution to public debate may be had by the publication of pictures of Princess Caroline on an afternoon tryst with her lover, its implications for the future of free speech is troubling. It would make it easier for judges to dismiss ideas on the ground that they do not contribute to public debate; when, for someone else who is not in a position to judge or mediate, such expression is reflective of the issues that matter to him or her. What this kind of precedent does is that it makes censorship easier to justify, and free speech guarantees easier to scuttle around. The case of Michael Douglas and Catherine Zeta-Jones When famous actors Douglas and Zeta-Jones married in 2000, they sold exclusive rights to their wedding to Ok! Magazine, with a view towards ensuring that their wedding would not be a "media frenzy" and that the paparazzi would be kept out. However, on the wedding day, a resourceful photographer, using subterfuge, was able to sneak inside and take unauthorized pictures of the bride and groom and their guests. He then sold these photographs to Hello! Magazine, a rival magazine company of Ok! Douglas and Zeta-Jones brought suit, and one of their claims is a violation of their right to privacy. An interesting aspect of discussion, albeit a peripheral one, is the special note the Court made of photographs as a form of expression. Said the Court: This action is about photographs. Special considerations attach to photographs in the field of privacy. They are not merely a method of conveying information that is an alternative to verbal description. They enable the person viewing the photograph to act as a spectator, in some circumstances voyeur would be the more appropriate noun, of whatever it is that the photograph depicts. As a means of invading privacy, a photograph is particularly intrusive. This is quite apart from the fact that the camera, and the telephoto lens, can give access to the viewer of the photograph to scenes where those photographed could reasonably expect that their appearances or actions would not be brought to the notice of the public. More important, however, was the issue of whether or not there was a violation of privacy or a breach of confidence. The Court held in favour of the Douglases when it ruled that "to the extent that privacy consists of the inclusion only of the invited and the exclusion of all others, the wedding was as private as was possible consistent with it being a socially pleasant event." Considering that the wedding invitations contained the polite request that guests desist from being cameras to the event, the photographer should have known that he was not authorized to take the pictures. He fully intended his breach, and to profit from the same by selling the pictures to the magazine. The decision also added another layer to the privacy vs. free speech debate in that it also acknowledged the right of the individual to make information about himself or herself public before everyone else does, and profit from such information. To quote from the decision: "The judge, at paragraph 196, held that the law of confidence protects "those who seek to manage their publicity as part of their trade or profession and whose private life is a valuable commodity". If this statement is correct the law treats information about a celebrity's private life as a trade secret and grants an injunction against publication of such information, or damages in respect of it, not because of the distress which the invasion of privacy causes but because of the commercial damage caused by infringing the celebrity's monopoly right to make such information public." This kind of precedent could only impact negatively on the arena of free speech. (Mayes, 2002) When before, free speech was held as inalienable and unshakeable, except in cases of "clear and present danger" or when it involves undeniable obscenity, or when it constitutes an unmistakeable trespass on the dignity of another person, a ruling of this nature withers the principle unjustifiably. To quote Lord Steyn: Freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country. Naomi Campbell In the case of Campbell v. Mirror Group Newspapers6 supermodel Naomi Campbell filed a case against The Mirror newspaper for publishing a story and an accompanying photo on her attendance at a drug rehabilitation center. The decision posed the threshold issue in this wise: "The essential question is whether even if a public figure which includes an international celebrity, such as Miss Naomi Campbell, courts and expects media exposure, she is left with a residual area of privacy which the court should protect if its revelation would amount to a breach of confidentiality." The Court eventually ruled in favour of Campbell and ordered The Mirror to pay damages in the sum of 3500. What was actionable, the Court had ruled, was not the publication of the fact of her drug therapy (as the public has the right to know that it had been lied to by the model, who previously denied she had a drug problem), but the details, which could only have come from a fellow participant at the therapy under circumstances wherein her expectation of privacy was reasonable. To quote: However consistent with article 8 in my judgment the court should protect from publication and give remedies for the wrongful publication in breach of confidence of details, which have the mark and badge of confidentiality, of the private life which a celebrity or public figure has chosen not to put in the public domain unless despite the breach of confidentiality and the private nature of the information publication is justifiable. Article 10 is not an unqualified right as article 10(2) requires respect for the right of privacy has to be shown including by the media. Striking the balance between articles 8 and 10 and having full regard to section 12(4) of the 1998 Act, clearly in my judgment Miss Campbell is entitled to the remedy of damages and/or for compensation. The case succeeded in laying the precedent that if the subject information was procured by virtue of a confidential relationship, then the right to privacy within the law of confidence may be used to prevent such information from being published. The future of free speech Such developments certainly erode the concept of free speech as enshrined in the Constitution and international covenants. While in the past, judges have been reticent about coming up with decisions that would curtail the right to expression, the alarming trend has been that courts have put such a premium on the right to privacy, at the expense of free speech. Certainly, it is difficult to summon moral outrage and righteous indignation to protect the right of a trash tabloid to print salacious pictures of, for example, Britney Spears, but then this is a question of quality and taste, which is not what judges are meant to decide. A commitment to free speech must be a commitment to all speech - barring of course, those that are clearly obscene or manifestly libelous (in which case, there are existing laws already covering those circumstances). If one permits censorship, then it inevitably creates a slippery slope. As stated by Volokh (2000), "Most of the justifications given for information privacy speech restraints are directly applicable to other speech control proposals that have already been suggested, and accepting these justifications in the attractive case of information privacy speech restrictions would create a powerful precedent for those other restraints." This is certainly not to exculpate the media for their excesses. Something must be said for the dogged, relentless hounding of celebrities; and it is not difficult to understand how vexatious they can be. However, education and editorial regulation are the keys to developing an intelligent, mature media and indeed, an intelligent and mature public. Diluting the time-honoured principle of free speech with a view to improving the quality of discourse is nothing else but throwing the baby with the bathwater. References Streeter, T. (1995) Some Thoughts on Free Speech, Language and the Rule of Law. In Jensen, R. and Allen, D. (Eds.) Freeing the First Amendment: Critical Perspectives on Freedom of Expression. 31-53. New York University Press. Volokh, E. (2000) Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking about You. Stanford Law Review, Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A New Legal Paradigm pp. 1049-1124. Mayes, T. (2002). Restraint or Revelation: Free Speech and Privacy in a Confessional Age. Spiked Liberties. Retrieved on 27 Jan. 07 from http://www.spiked- online.com/Articles/00000006DAC6.htm. Read More