Human Rights and English Law - Essay Example

Article 10 of the European Convention on Human Rights and Freedoms (hereinafter “ECHR recognises the freedom of expression as among the human rights whose protection must be guaranteed. Through the Human Rights Act 1998 (hereinafter “HRA”), freedom of expression, alongside other ECHR rights, was recognised as a fundamental right, guaranteeing protection within the United Kingdom, giving it a degree of immunity from state suppression and regulation. However, whereas the significance of the freedom of expression as a fundamental human right requiring protection is not questioned, the degree of immunity accorded to it is a frequently debated issue insofar as restrictions regarding its protection are concerned, challenging its character as a fundamental right. Given the issues surrounding the freedom of expression, this essay will therefore argue that the freedom of expression is a fundamental human right, whose protection, although guaranteed, is not absolute such that restrictions must be placed to ensure that its exercise is in accordance with the laws of the land and the responsibilities required of citizens. The freedom of expression is recognised as among the “human rights and fundamental freedoms [that are] the birthright of all human beings” (cited in Smith, 2004, p. 1). Its fundamental character lies in its significance as a pillar of democratic society, and as a human right intimately connected with the exercise of individual life and liberty. As illustrated in Handyside v. United Kingdom1, the “[f]reedom 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”, such that its protection is extended “not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” Hence, freedom of expression is a fundamental right, whose exercise is necessary for citizens to participate in the democratic process and the functioning of society (Stone, 2004, p.1). On the other hand, the freedom of expression is also a human right whose exercise directly affects other fundamental human rights as recognised by the ECHR. Whereas Article 9 of the ECHR recognises the freedom of religion, the exercise of such freedom is incomplete if individuals are restricted in their expression of religious beliefs. Freedom of expression is therefore fundamental as a political right and in ensuring that individuals enjoy personal freedoms. The freedom of expression however has been dubbed as a “liberal puzzle”, such that while the need to protect it is well established, there is an ensuing debate regarding the scope of its protection (Barendt, 2005, p. 1). Hence, the ECHR distinguishes between absolute human rights whose protection is unimpeachable regardless of the surrounding circumstances and conditional human rights whose protection is restricted by certain limitations. With respect to the freedom of expression, limitations are delineated in paragraph 2 of Article 10, which recognises the duties and responsibilities attached to the freedom of expression such that its protection is subject to conditions “prescribed by law and are necessary in a democratic society”. Hence, violations of the freedom of expression can therefore be justified insofar as it is in accordance with the law and necessary for a democratic society. The freedom of expression as a conditional right however, should not be misconstrued as diminishing its fundamental character. Instead, it only illustrates that among the fundamental human rights recognised in the ECHR, a hierarchy of rights exists where violating some rights can be justified. However, because States differ on matters such as moral values, culture, and a sense of fairness, the ECHR provides a certain “margin of appreciation”, such that in guaranteeing protection for human rights, they are given the prerogative to set restrictions on conditional rights, including the freedom of expression. Regarding restrictions under British law, Lord Hoffman emphasises in Campbell (Appellant) v MGN Limited (Respondents), the need to balance between conflicting interests by “[focusing] on the comparative importance of the specific rights being claimed in the individual case”.2 To determine this balance, Lord Nicholls in Regina v. British Broadcasting Corporation (Appellants) ex parte Prolife Alliance (Respondents)3 comments that restrictions to the freedom of expression must consider the type of speech in question such that between the “freedom of political speech and the protection of the public from being unduly distressed in their own homes” for example, protecting public interest must prevail over the freedom of speech. The same restriction is applied in the case of R v Stephane Laurent Perrin4 to obscene publications, which can harm the public by corrupting the minds of individuals. The case of A v B PLC (Sub Nom Garry Flitcroft v Mirror Group Newspapers)5, on the other hand, illustrates that an individual’s freedom of expression may be restricted to prevent breaches of confidence between individuals in special relationship as exemplified by the injunction aimed at preventing Flitcroft’s previous partners from exposing their private affair in public. Moreover, such privacy is not limited to relationships between private individuals, but as well as relationships arising from official duties as illustrated in Regina (Appellant) v Shayler (On Appeal From The Court of Appeal (Criminal Division))6 which prevents the disclosure of documents in the interest of national security. The restriction however, was further strengthened in Venables v News Group Newspapers Ltd, which held that “there is no longer a necessary element of the confidentiality cause of action that the information arises from a confidential relationship if there was a real and strong possibility of serious physical harm and death” (cited in Rozenberg, 2004, p.34). The concept of harm however is not limited to the possibility of physical harm or death. Instead, English law also recognises the defamation of character as possible justifications for restricting the freedom of expression. Hence, restrictions are therefore imposed to prohibit individuals from expressing defamatory false statements of fact; or statements of opinion that are not based on facts, not within the public interest, and unfair (Young, 2000, pp. 90-91). Thus, the restrictions under English law are legally justified given that in balancing infringements on the freedom of expression with the need to protect the rights and interests of individuals and the public at large, as well as the need to prevent breaches in confidence, especially when arising from a relationship, which is crucial for the State’s security, such restrictions are in accordance with the legitimate aims of paragraph 2 under Article 10 of the ECHR. It should be noted, however, that while the restrictions on the freedom of expression within English law can be justified, its application insofar as judicial interpretation are concerned leaves much room for debate, where unjustified restrictions may persist. Hence, the new rules on statutory interpretation provided by Article 3 of the HRA, which states “[s]o far as possible to do so, [legislation] should be read and given effect in a way which is compatible with Convention rights” and Article 4, which allows courts to invoke a “declaration of incompatibility”; potentially allows courts to defer from providing judgments to reverse unjustified restrictions for difficult cases. Furthermore, some scholars are correct to be “sceptical” of certain rights embodied in the Act, where in the case of freedom of expression, human rights law seem to have diminished the relationship between citizens and the state to one where the state’s welfare in terms of security, may always prevail over individual rights (Tomkins, 2001, p.8). The freedom of expression is therefore a fundamental human right whose existence is necessary for individuals to exercise other freedoms, as well as participate in the political process. However, despite its importance, the freedom of expression is not an absolute right, such that it can be justifiably restricted by states, insofar as the restrictions are in accordance with the criteria provided by the ECHR. In this respect, the restrictions within English law can be justified on the basis of protecting the rights and interests of individuals, groups, and the state. It should be noted, however, that the protection of the freedom of expression, insofar as the English legal system is concerned, does not guarantee that all infringements cannot be remedied and compensated, especially in difficult cases where court judges can refuse to interpret legislation compliant with the ECHR. References Cases Handyside v. United Kingdom 5493/72 [1976] ECHR 5. Campbell (Appellant) v MGN Limited (Respondents) [2005] UKHL 61. Regina v. British Broadcasting Corporation (Appellants) ex parte Prolife Alliance (Respondents) [2003] UKHL 23. R v Stephane Laurent Perrin [2002] EWCA Crim 747. A v B PLC (Sub Nom Garry Flitcroft v Mirror Group Newspapers) [2002] 1 FLR. Regina (Appellant) v Shayler (On Appeal From The Court of Appeal (Criminal Division)) [2002] UKHL 11. Venables v News Group Newspapers Ltd. [2001] ICHRL 3. Primary Legislation European Convention on Human Rights and Freedoms 1950 Human Rights Act 1998. Secondary Materials Stone, R. (2004). Textbook on Civil Liberties and Human Rights, London: Oxford University Press. Young, A. (2000). “Fact, Opinion, and the Human Rights Act: Does English Law Need to Modify its Definition of ‘Statements of Opinion’ to Ensure compliance with Article 10 of the European Convention on Human Rights?” Oxford Journal of Legal Studies (10)1, 89-107. Tomkins, A. (2001). Introduction: On Being Sceptical about Human Rights. In T. Campbell, K.D. Ewing, and A. Tomkins (Eds.), Sceptical Essay on Human Rights, London: Oxford University Press. Barendt, E. (2005). Freedom of Speech, (2nd Ed.), London: Oxford University Press. Smith, R.K.M. (2004). Textbook on Human Rights, (2nd Ed.), London: Oxford University Press. Rozenberg, J. (2004). Privacy and the Press. London: Oxford University Press. Read More