Any moves by the new Conservative government to repeal the 1998 Human Rights Act could have serious repercussions for the way in which the UK media operates.
The principles laid out in the European Convention on Human Rights, adopted into English and Scots law under the 1998 Acts, underpin current defamation and privacy law and have driven key rulings ever since.
The tensions between Article 8, the right to a private life, and Article 10, the right to freedom of expression, have been played out in a succession of rulings, often contradictory.
The 2002 case of TV presenter Jamie Theakston, who sued over a Sunday People story about his visits to a brothel, favoured freedom of expression.
The judge, Mr Justice Ouseley, had this to say: “If a well-known man has sexual relations with a prostitute in a brothel, the desire on his part to keep their actions and ‘relationship’ confidential and the desire on the part of the other to exploit their actions and relationship commercially are irreconcilable.”
But the 2008 Max Mosely ruling by Mr Justice Eady tipped the balance heavily in favour of the individual’s right to privacy than another’s right to express their views or, as in this case, to tell their story.
Eady could not have been clearer when he said: ““It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on the grounds of taste or moral disapproval. The fact that a particular relationship happens to be adulterous or that someone’s tastes are unconventional or ‘perverted’ does not give the media carte blanche.”
Even Chelsea skipper John Terry’s failed attempt to prevent publication of details of his affair with team-mate Wayne Bridge’s girlfriend in 2010 did not alter the general view that only in exceptional circumstances would Article 10 trump Article 8
From a media point of view, the rights enshrined in Article 10 remain vital, and while the Conservatives have pledged to uphold freedom of the Press in a new Bill of Rights, until such times as the terms are known it is difficult to argue that this particular baby should be thrown out with the ECHR bathwater.
As far back as 1979, thanks to Article 10, the European Court upheld the Sunday Times appeal against conviction for contempt of court following the publication of details about Thalidomide during a civil case against the drug’s manufacturer Distillers.
But so too would the Government not wish to lose the protective catch-all caveat on Article 10, which states that freedom of expression is subject to “penalties as are required by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary”.
Perhaps with new Justice Minister Michael Gove, a former Press & Journal and Times journalist, in charge of the Human Rights Act reforms, and with the back-up of John Whittingdale in the Culture ministry, the news industry has less to fear than might otherwise be the case, but repeal is still fraught with difficulty.
One case, now effectively kept on ice, is the news industry’s legal action against the Government’s decision to force through their Royal Charter plan without due consideration of the industry’s alternative proposal.
All domestic legal challenges have been thrown out and the final move would be to take the argument to the European Court, which ruled in 1995 that excessive damages could be a breach of Article 10, if a publisher was ever punished by a UK court for not being part of the state-sanctioned system.
It remains the industry’s view that the Government’s action was a breach of ECHR Article 10, so withdrawing the UK from European law would deny the industry the chance to test the issue in a process free from the political influences which lay behind the Royal Charter in the first place.
It may be that all this is academic, given what appears to be the Conservatives’ lack of enthusiasm for further restrictions on the Press, but the threat remains and ECHR remains the last defence we have against what would effectively be direct political interference with Press regulation.
The Scottish Government has already said it will not follow any attempt to abandon the ECHR, so the legal landscape for publishers operating on either side of the border could be hideously complex. And this is just one area.
Uncoupling the UK from European law might have looked good in a manifesto, but Michael Gove is just finding out how hard it’s going to be.