Freedom of Expression under the European Convention on Human Rights - Essay Example

The Human Rights Act 1998 is an important but problematic addition to the protection of liberties in Britain. Discussion, with particular reference to Freedom of Expression under the European Convention on Human Rights The adoption of the Human Rights Act (HRA) 1998 changed the judicial approach as it redefined the relationship between the individual and the State. It was intended to raise the consciousness of the masses in terms of awareness of rights. It is important not to exaggerate the negative aspects of the UK courts’ approach to Article 10 so far. The common law evidences a rich tradition in protecting freedom of expression so it is hardly the case that the UK judiciary does not recognize its significance at all. Compelling criticisms were made of the common law’s approach to free speech pre-HRA. The first part of this paper will discuss the courts’ approach to the free speech principle whilst the second seeks to understand the UK judiciary’s strategy towards Article 10. Following this discussion, arguments will be put forward about the possible causes and consequences of the free speech principle and also the strategy of the judiciary in this regard. The essay will also provide the remedies that are available for the above mentioned issues. There are a number of established justifying theories that would protect a broad range of expression both for its instrumental that includes both the short-term and long-term values and intrinsic value. This move aims at increasing the protection that is extended to these expressions.. There is still some ambiguity when it comes to establishing the liberal approach to the freedom of expression which includes the freedom of speech as well. There are many supporting theories in ex parte Simms that the court has identified but still the theories is not been applied practically and mildly touches upon the freedom of speech instead of being forceful. There is no real evidence of protection of free speech in its natural way in the domestic Article 10 jurisprudence. Moreover, the approach to protection on instrumentalist grounds has been fairly narrowly construed that is based more on short-term than long-term valuations. The courts’ approach to commercial expression is considered in more detail later on. In relation to the media, it is apparent from the case law that the UK courts readily accept that the press has a vital function to perform in a democratic society (and this principle is also evident in the Strasbourg jurisprudence), which suggests a long term approach to its instrumental value. However, even the bountiness of the UK courts’ approach to media freedom is debatable. As Barendt has long argued, the meaning and scope of freedom of speech can only be properly understood in the context of the theoretical arguments regarding protection. It is not a requirement that the judiciary should “indulge in philosophical speculations” as the text of the constitutional document (in this case the European Convention on Human Rights and Fundamental Freedoms (“ECHR”)) leaves many questions unanswered. There are conflicting opinions as to what extend Article 10 shall apply and the areas of conflict include commercial expressions, pornographic expressions and also artistic expressions. The court cannot avoid confronting questions that are related to political philosophy. Only an established theory that is formulated with greater commitment and practical value will be able to the meet up with the requirement of achieving the purpose of Article 10. The concept of Freedom of speech under Article 10 is quiet complicated and needs to be handled with care and caution. In order to achieve the purpose of justice on the freedom of expression, the judiciary must involve itself with debates covering the different aspects of the topic. A thorough analysis, debate and standing in the subject matter of expression will only help the judiciary to frame laws pertaining to it. A thorough debate on the pre-HRA condition is mandated in order to understand the needs but it was not encouraged. The result of this is the failure to maximize the protection by the courts. The UK judiciary has made it clear that they intend to mirror the Strasbourg jurisprudence so as to ensure the UK human rights jurisprudence is neither far ahead or far behind the requirements. Speaking extra-judicially, Baroness Hale has noted that the Ulla principle has better influence in cases that would involve instruction of Parliament to leap ahead of Strasbourg rather than in cases that would involve the common law leaping ahead. This might explain the judiciary’s motivation in wanting to ensure parity with the Strasbourg case law even if it does not resolve the dilemma of why the UK courts ought not to develop human rights beyond the limitations encountered at Strasbourg level. Thus, the strategy of the UK courts toward Article 10 may be described as an intention to replicate the European Court of Human Rights’ (“ECtHR”) approach which is done with great caution in order to avoid any conflict with statutory provisions. Naturally, this explains the UK courts’ basic approach toward coverage, i.e. that Article 10 extends not only to political expression but also artistic, commercial and even pornographic speech. This condition further explains the UK courts adherence to a consequentiality rationale at the expense of valuing expression for its intrinsic worth. This consequentiality rationale is a hallmark of the Strasbourg Article 10 jurisprudence. However, this strategy may be criticized on a number of grounds. First of all, the strategy does not sufficiently recognize the effect of the limitation of ECtHR, i.e., the European Court of Human Rights. As noted above, the strong statements of free speech principle within the Strasbourg jurisprudence are often shattered by the ECtHR’s relatively weak position as a human rights tribunal. Thus, the Ullah principle lacks clarity on this point: the UK courts should be seeking to observe and follow the statements of principle rather than the outcomes. This is what stands as a main point. Secondly, the UK courts’ approach to expression is overly pragmatic. The freedom of political expression enjoys a considerable and well established stand in the protection terms in theoretically but there are no concrete case laws to support the theory. The absence of a concrete precedence is due to the overly pragmatic approach taken by the courts. Thirdly, the Ullah principle may also be criticized on an additional ground. The UK Article 10 jurisprudence contains examples of free speech claims that are fairly spurious in theoretical terms. Since the ECtHR sets a low threshold on expression captured by Article 10, the courts are required to fully engage with Article 10 analysis – albeit often on a fairly shallow basis. The UK judiciary appears to have adopted an unduly narrow view of the argument from participation in democracy in which the strongest protection is reserved for expression that actually beneficially influences or affects democracy. This essay observes that one of the paucities of free speech in the UK particularly which includes the Strasbourg level. The heavy dependence on the argument of democracy has given rise to the neglect of a vast array of established literature on free speech theory. . The right to free speech will become stronger, if the free speech remedies are taken from other such broader free speech theories. However, the core argument put forward by this essay is that, regardless of whether the domestic courts are grouped to consult these broader theories, the adoption of narrow views with regard to the democratic arguments have paved way for the ineffectiveness. There is no need for the judiciary to adopt such a view: the act of participating is the critical factor not the significance of such participation or measure of its beneficial effect. Instead, the UK courts seem to be treating freedom of speech as a right to beneficially influence so that where that influence is uncertain or else not deemed beneficial protection is unlikely. Having established that the UK judiciary broadly adheres to a particularly narrow conception of the democratic process value when determining Article 10 claims, the purpose of this section is to identify what is the cause of this narrow approach. This will help to understand as to what extend the judiciary might be able to broaden the approach. First, it will be argued that the UK courts’ approach to the Strasbourg jurisprudence, i.e. the strict adherence to the Ullah principle, is a significant factor in the UK courts’ limited approach to Article 10. The instruction to ensure parity with Strasbourg jurisprudence does not adequately recognize the dichotomy within the Strasbourg decision-making between free speech principle and the limitations of the ECtHR as a court. In other words, ‘mirroring’ Strasbourg jurisprudence does not sufficiently recognize that the ECtHR and domestic courts have diverse roles to perform: i.e. the limitations of the Strasbourg court stem from the fact that it is not a domestic court. Secondly, it will be argued that the reluctance to embrace and apply broader principles to Article 10 may stem not just from the UK courts’ approach to Sec .2 but also from previous approaches toward freedom of speech that are evident in the pre-HRA case law. Thus the judiciary might need to reassess the role of pre-HRA free speech case law on decision-making on Article 10 (including the extent to which pre-HRA principles has already influenced or tainted post-HRA precedent). Thirdly, it will be argued that the development of other Conventional rights in the UK jurisprudence also affects the courts’ approach to Article 10. In general terms, it has been argued that the US’s approach to freedom of speech is more sophisticated and more principled than the UK or ECtHR’s approach. Barendt argues that the US approach is “explicable in terms of a strong suspicion of government and its motives for imposing restrictions on speech” and further adds that the US courts “distrust detailed ad hoc balancing of free speech against other competing rights and interests, fearing that the former will inevitably be given too little weight in the scales.” This point connects with the second observation made above. The nature of the UK judiciary’s engagement with the Strasbourg jurisprudence should be guided by its recognition of the limitations of the ECtHR as a court. In other words, the method by which the UK courts ensures to ‘mirror’ the Strasbourg jurisprudence should be informed by the dichotomy in the ECtHR’s approach to Article 10 claims. There are two levels on which the UK courts could ensure parity with the Strasbourg jurisprudence – at the level of theory or at the level of consequences. ECtHR argues, the Strasbourg jurisprudence contains strong statements of free speech principle yet those principles are not always realised in the final outcome because of the margin of appreciation operating between them. Thus, the narrower approach in the UK Article 10 jurisprudence compared to either the approach to participation in a democratic society is evident. Meikle John’s theory or the ECtHR’s approach to free speech principle shows the UK courts’ failure to identify this dichotomy and overtly separate principle from limitation. It involves not just the recognition that the principle of dichotomy exists but also the determination of the dividing line in each of the cases that arise in a similar situation. The influence of the margin of appreciation may be so deeply ingrained into the decision that it is not possible to extract it from the verdict. Thus Singh, Hunt and Demetriou describe the margin of appreciation as a “conclusory label” that “only serves to obscure the true basis” for the decision and “as such it tends to preclude courts from articulating he justification for and limits of their role as guardians of human rights in democracy”. The reluctance to embrace and apply broader principles to Article 10 may also be explainable by reference to the pre-HRA approach to freedom of speech. The pre-HRA case law evidences an uneven approach to freedom of speech. Of course, this is explainable by reference to limitations placed on the court with regard to civil liberties: the common law could only develop human rights so far as the system of negative liberty would allow. Yet, the commentators had criticized the UK courts’ general approach towards the freedom of speech concept as inconsistent, sometimes restricting protection “on uncertain or flimsy grounds”. It was also argued that, post-HRA the UK courts have demonstrated greater receptivity to free speech claims of certain speakers over others, particularly over the media. Thus it may be that the UK courts’ differential approach to freedom of expression represents a hangover from the pre-HRA approach to freedom of speech. The UK courts have not yet fully made the transition from a liberty-based to rights-based system. Of course, there is a deeper philosophical debate about the nature of rights as compared to liberties. Yet that debate is not central to the point being made. The relevance of the pre-HRA case law in determining Article 10 cases has not been explicitly questioned in the post-HRA case law and presently remains unresolved. As mentioned earlier in this paper, it had been said on several occasions that the UK case law was compliant with Article 10. However, since Article 10 was not directly enforceable at that time (although, if there was any ambiguity in our statutes or uncertainty in our law, the courts could look to the Convention as aid to clear up the ambiguity and uncertainty) that proposition was never fully tested because it did not need to be. Thus, where pre-HRA principles of uncertain compliance with Article 10 influence the outcomes of post-HRA decisions, the transition from a liberty-based to a right-based system may have a negative impact. The UK judiciary is still not reached the transformation with regard to the individual freedom of speech protections. At this stage, the courts have started to look up to the views of the HRA as a “decisive break from the past”. Of course, it has been said that the Strasbourg jurisprudence also favor media expression over individual expression. There is a general perception that the Strasbourg jurisprudence stands in favor of the expression of the media when compared to that of the individual expression. There seems to be some truth in it. The ECtHR justified this view on the basis that “in a democratic society even small and informal campaign groups…must be able to carry on their activities effectively and that there exists a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate”. In order to determine the protection of a free speech, it is not a relevant fact to determine whether a person is a journalist or not. Assuming the Ullah principle remains unaltered, this principle must be incorporated into the UK jurisprudence if the position at Strasbourg is to be ‘mirrored’. Moreover, it is important that this principle is recognized in the in an in-depth manner and not just at a superficial level. Thus, in very broad terms, it is arguable that the HRA has not resulted in a noticeable sea-change in the manner in which the UK courts approach freedom of speech. The failure on the part of the HRA to create the expected change in the UK courts approach is mainly because of the fact that UK enjoyed a favorable free speech right prior to the HRA, i.e. that freedom of speech was protected by the courts. Indeed, it has been argued that the right to freedom of expression “exists quite apart from the HRA”; that the common law “has come to recognize and endorse the notion of constitutional or fundamental rights. These are broadly the rights given expression in the ECHR, but their recognition in the common law is autonomous.” However, while there are evidences to this claim, it risks overlooking the serious concerns raised about the state of free speech in the pre-HRA case law. Yet it is not farfetched to conclude that there has been a general lackluster approach to the development of Article 10. The judiciary has concluded that the introduction of Article 10 did not necessitate much change in judicial thinking post-HRA. In other words, both unquestioning adherence to Strasbourg jurisprudence and pre-HRA thinking risks the realization of an effective free speech right. Having set out in greater detail what may be the cause of the UK courts’ approach to Article 10, this section of the paper makes the case for why this approach has adverse consequences. The discrepancy with regard to free speech in theoretical form and that of the practical expression does not serve to settle the crux of this argument. It is also realized that some of the cases in which free speech protection has been denied so far does not bring in the necessary sympathy towards the issue. To reserve the highest Article 10 weight only to speech that shows great consequential value to society at large is an elitist betrayal of freedom of speech’s essential premise. It is not right to protect the freedom of speech to only that speech that brings in great consequential value to the society. This attitude does not protect the essence of the freedom of speech in anyway. Singh has previously argued that the courts should treat freedom of speech as “a zone of action protected by a high wall…that the state may not enter…even when it enforcing an otherwise legitimate rule”; the present approach to Article 10 in the UK does not equate to this vision. The court’s approach of ‘balancing act’ is largely responsible for the protrusion into this protected zone. By treating societal interests and non-Convention rights equivalent to the rights of Article 10, there is a significant risk that this zone of protected action may be infringed whenever a member is shocked, upset or insulted by the any speech. Thus Mill’s principle that since an individual dissenter cannot silence the masses, the masses can also not silence an individual is not yet recognized by the present laws in the UK. Geddis argues that the treatment of individual dissenters acts as “a canary in a coal mine, [that] the overall health of our body politic may be judged by how far our legal ordering provides her with the space to make her opinions known to the public”. In finding Mrs. Connolly’s conviction was “convincingly shown [to be] necessary”, Lord Justice Dyson summed up in the following terms: “Her right to express her views about abortion does not justify the distress and anxiety that she intended to cause those who received the photographs. Of particular significance is the Fact that those who work in the three pharmacies were not targeted because they were in a position to influence a public debate on abortion. The most that Mrs. Connolly could have hoped to achieve was to persuade those responsible in the pharmacies for their purchasing policies to stop selling the ‘morning after pill’...In any event, even if the three pharmacies were persuaded to stop selling the pill, it is difficult to see what contribution this would make to any public debate about abortion generally and how that would increase the likelihood that abortion would have been prohibited.” His last sentence is unconvincing, it takes very little imagination to see that there would be media interest in such a coup or that it would have provided a platform for an organization like Prolife Alliance to springboard a campaign that encourages other like-minded individuals to follow her example. The photographs are the main issue in this particular case. They created shock and distress to the people to whom it was sent. Some people were in a position to influence a public debate on it. This finding, whilst sensible in isolation, does not ring true when one considers the bigger picture. All these reactions are both understandable and available to anyone who hears an anti-abortionist speak but these are not convincing reasons to suppress the right to speech. As Barendt argues, “free speech is of value precisely because it enables radicals to challenge established orthodoxies and received wisdom, including our conventional understandings of what is tasteful and decent.” Furthermore, the differential treatment between the individual dissenter and the media ought to be re-evaluated. The media is afforded high levels of protection, as it should be. The conceptual device that seems to separate the media and ‘non-media’ is the ‘public watchdog function’, which has been used in a number of Strasbourg cases to justify Article 10 protection. The crux of this protection is that the media deserves a special protection because of the valuable contribution it makes to society in acting as a public watchdog. In other words, media is considered as the fourth estate. Yet the individual dissenter may also occupy this role. As noted above, the Strasbourg jurisprudence recognizes “the legitimate and important role that campaign groups can play in stimulating public discussion”. The UK judiciary should follow this suit. It might be thought that the ‘public watchdog function’ device should be reserved for the media because differences exist between them and the ‘non-media’. The two advantages that the media might be perceived to have over individual dissenters is a greater strength in reaching its audience and a greater credibility. Admittedly, the media has a natural advantage in being able to reach its audience and it may be also be a more trusted source of information for certain individuals (and these are reasons for protecting the media). Yet the definition of the media is highly unstable and it is important the judiciaries are vigilant over this issue. Since it describes the delivery vehicle rather than the actor, it encompasses all forms of communication. Of course, the term resonates mostly with traditional forms of information: newspaper, radio and television. Internet must also be added to this list as it also plays a major role in influencing the society that we live in. Since the issues highlighted in this thesis covers a wide-range of issues, the ‘remedy’, such as it is, cannot be put in simple terms without seriously risking its usefulness. Yet if the solution to the challenge of maximizing free speech protection under Article 10 is a jigsaw puzzle then some of the pieces may clearly be identified. First, a shift in judicial attitude is critical if these issues are to be addressed, including the cultivation of the rights of culture that Lord Irvine promised. It is asserted that the opportunity to establish a more principled approach has been missed but it has not been lost altogether. The opportunity still exists and the judiciary should take it. Realization of this shift in judicial attitude need not be radical and it need not, necessarily, conflict with the Court’s conclusions about their obligations. A critical aspect of this realization would be to recognize that the democratic process value can be broader than the Court. The court currently acknowledges this so that broader conceptions of the argument from participation in democracy and the arguments from self-fulfillment and truth are included. Further to this, the Court should address its own competence to determine what speech can be considered valuable and what speech is not. By delineating and demarcating he court would create the much needed precedence. Presently, this approach conflicts with the strong principle that government should distrust its own capacity to make such judgments. Should the judiciary realize this, a broader free speech right might emerge consequent to the realization. Another significant piece of the jigsaw would be for the courts to dispense with the obvious current approach of treating societal interests and non-Convention rights as ‘equal’ in the balancing process. Dicey wrote that “freedom of discussion is in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said for written”. Besides from relocating the decision from jurors to judges, Dicey’s statement of the law is dissonantly familiar. It captures two concerns in particular: that a narrow consequentiality approach dominates (“what should be said or written” will be protected) and the centrality of the judgment in determining this assessment. While it is important not to exaggerate these concerns about how freedom of expression is treated, it is likewise important not to be complacent with the current condition. The media seems to be strongly protected and it should not be forgotten that Members of Parliament have a near absolute right to freedom of speech in Parliament yet the principle of free speech extends beyond these sources as well. It resides in the principle that every citizen is entitled to express their opinion and that all forms of government should distrust its ability to know what ‘should be said or written’ and what should not be. The goal of the HRA was to create a rights based culture in which the effective enjoyment of free speech would be realized. It take more initiatives on the part of the government, individuals and also the court to realize the goals of freedom of speech in a consistent manner. Bibliography Books L Alexander, Is There a Right of Freedom of Expression? (CUP, 2005) E Barendt, Freedom of Speech (OUP, 1985, 1st ed.) E Barendt, Freedom of Speech (OUP, 2005, 2nd ed.) L C Bollinger & G R Stone (eds.), Eternally Vigilant: Free Speech in the Modern Era (University of Chicago Press, Chicago 2002) H Fenwick & G Phillipson, Media Freedom under the Human Rights Act (OUP, 2006) S Fish, There’s No Such Thing as Free Speech, and it’s a good thing too (OUP, 1994) K Greenawalt, Speech, Crime and the Uses of Language, (OUP, 1989) T M Scanlon, ‘A Theory of Freedom of Expression’ in The Philosophy of Law, R M Dworkin (ed.) (OUP, 1977) F Schauer, Free Speech: A Philosophical Enquiry (CUP, 1981) K Starmer, European Human Rights Law: The Human Rights Act 1998 and the European Convention (Legal Action Group, London 1999) Journals Derbyshire County Council v Times Newspapers in the House of Lords: Molecular rather than Molar Motion (1994) 14(2) OJLS 287 P Horton & L Alexander, ‘The Impossibility of a Free Speech Principle’ (1983) 78 North U L Rev 1319 G Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26(4) OJLS 705 R Masterman, ‘Taking the Strasbourg Jurisprudence into Account: Developing a Municipal Law of Human Rights under the Human Rights Act’ (2005) 54(4) The International and Comparative Law Quarterly 907 G Phillipson, ‘Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act’ (2003) 66(5) MLR 726 G Phillipson & H Fenwick, ‘Public Protest, the Human Rights Act and Judicial Responses to Political Expression’ (2000) PL 625 G Phillipson & H Fenwick, ‘Breach of Confidence as a Privacy Remedy in the Human Rights Act Era’ (2000) 63(5) MLR 660 M Redish, ‘The Value of Free Speech’ (1982) 130 U Pa L Rev 591 T M Scanlon, ‘Freedom of Expression and Categories of Expression’ (1979) 40 U Pitt L Rev 519 L Vickers, ‘The Protection of Political Opinion in Employment’ (2002) EHRLR 468 Official Documents Lord Irvine, Third Reading, 5 February 1998, HL Debates, vol 585, col 840 P M Wragg, Critiquing the UK Judiciary’s Response to Article 10 Post-HRA: Undervaluing the Right to Freedom of Expression? Doctoral thesis, Durham University. [accessed 19/07/2011] Legislation European Convention on Human Rights and Fundamental Freedoms, Article 10 Human Rights Act 1998, s.2 Cases R v Central Independent Television plc (1994) Fam 192 R v Secretary of State for the Home Department, ex parte Simms (2000) 2 AC 115 Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743 Steel and Morris v United Kingdom [2005] ECHR X (A Minor) (Wardship: Restrictions on publication) (1975) Fam 47 Human Rights Act s.2 E Barendt, Freedom of Speech (OUP, 1985, 1st ed.) 41. Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743; X (A Minor) (Wardship: Restrictions on publication) (1975) Fam 47; R v Central Independent Television plc (1994) Fam 192. Although see discussion of R v Secretary of State for the Home Department, ex parte Simms (2000) 2 AC 115, at pages 29-35, decided on the cusp of the HRA’s inception, in which freedom to publish is not the primary focus of the free speech claim. As will be shown, this claim contains important common law free speech principles. See Phillipson and Fenwick, ‘Public Protest, the Human Rights Act and Judicial Responses to Political Expression’ (2000) PL 625 E Barendt, Freedom of Speech, (OUP, 2005, 2nd ed.) 6. Indeed, for that reason, several commentators have doubted whether a coherent principle of free speech can be elucidated. P Horton & L Alexander, ‘The Impossibility of a Free Speech Principle,’ (1983) 78 North U L Rev 1319; L Alexander, Is There a Right of Freedom of Expression?, (CUP, 2005) [45] & S Fish, There’s No Such Thing as Free Speech, and it’s a Good Thing Too (OUP, 1994) 1-9. E Barendt, Freedom of Speech, (1st ed.) (n i) 1-8. E Barendt Freedom of Speech, (1st ed.) (n i). 1-8 F Schauer, Free Speech: A Philosophical Enquiry (Cambridge University Press, 1981) 45. T M Scanlon, ‘A Theory of Freedom of Expression,’ in The Philosophy of Law, R M Dworkin (ed.) (OUP, 1977) & T M Scanlon, ‘Freedom of Expression and Categories of Expression’ (1979) 40 U Pitt L Rev 519 M Redish, ‘The Value of Free Speech’ (1982) 130 U Pa L Rev 591 L Alexander (n vii) [46]. See similarly S Fish, (n 2)[12] and ‘The Dance of Theory’ in L C Bollinger & G R Stone (eds.), Eternally Vigilant: Free Speech in the Modern Era (University of Chicago Press, Chicago 2002) fn 38 E Barendt Freedom of Speech, (1st ed.) (n i) F Schauer, Free Speech: A Philosophical Enquiry (Cambridge University Press, 1981) [45] T Scanlon, ‘A Theory of Freedom of Expression,’ in The Philosophy of Law, R. M. Dworkin, ed., (OUP, 1977) & [Dworkin] ‘Freedom of Expression and Categories of Expression’, (1979) U Pitt L Rev 519 E Barendt Freedom of Speech, (1st ed.) (n i) M Redish, ‘The Value of Free Speech’ (1982) 130 U Pa L Rev 591 E Barendt Freedom of Speech, (1st ed.) (n i) H Fenwick & G Phillipson, Media Freedom under the Human Rights Act (OUP, 2006) [41]; G Phillipson & H Fenwick, ‘Breach of Confidence as a Privacy Remedy in the Human Rights Act Era’ (2000) 63(5) MLR 660 & G Phillipson, ‘Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act’ (2003) 66(5) MLR 726 Barendt, Freedom of Speech, (1st edn.), (n i). M Redish, ‘The Value of Free Speech’ (1982) 130 U Pa L Rev 591(n xix) H Fenwick & G Phillipson, Media Freedom under the Human Rights Act (n 2); G Phillipson & H Fenwick, ‘Breach of Confidence as a Privacy Remedy in the Human Rights Act Era’ (n 2) & Phillipson, ‘Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act’ (n 2) F Schauer, Free Speech: A Philosophical Enquiry (Cambridge University Press, 1981) Barendt, Freedom of Speech, (1st edn.), (n i). M Redish, ‘The Value of Free Speech’ (1982) 130 U Pa L Rev 591 K Greenawalt, Speech, Crime and the Uses of Language, (OUP, 1989) 25. E Barendt Freedom of Speech, (1st ed.) (n i) M Redish, ‘The Value of Free Speech’ (1982) 130 U Pa L Rev 591 Gregory, Martins, Media Freedom under the Human Rights Act, (OUP, 2006); [Jake]‘Breach of Confidence as a Privacy Remedy in the Human Rights Act Era’ (2000) 63(5) MLR 660 & Phillipson, ‘Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act’ (2003) 66(5) [London Press. 34] K Starmer, European Human Rights Law: The Human Rights Act 1998 and the European Convention (Legal Action Group, London, 1999) 51. F Schauer (n i) 14. Cited in L Vickers, ‘The Protection of Political Opinion in Employment’ (2002) EHRLR 468 Read More