Page 320 - Law and the Media

The Human Rights Act 1998
. . . if those who seek to bring themselves within paragraph 2 of article 10 are to
establish ‘convincingly’ that they are – and that is what they have to establish –
they cannot do so by mere assertion, however eminent the person making the
assertion, nor by simply inviting the court to make assumptions; what is required
. . . is proper evidence. (Kelly v BBC (2001))

It has been suggested that, because the Convention right to freedom of expression is qualified
in favour of the reputation and rights of others (which includes the right to respect for private
life under Article 8), when considering an injunction against the media, ‘privacy’ and
‘reputation’ rights are as relevant as freedom of expression (Douglas v Hello! (2001)).

19.5.3 Media regulation

The media are, of course, subject to substantial statutory and non-statutory regulation. Bodies
such as the Independent Television Commission and the Broadcasting Standards Commis-
sion (see Chapter 17) are public authorities for the purposes of the HRA and must, therefore,
act in a way that is compatible with the Article 10 rights of the media. It is likely that the
Press Complaints Commission will also be held to be a public authority for HRA purposes,
and it must, therefore, also act compatibly with Convention rights.

19.5.4 Defamation
The courts have been generally cautious in applying Convention principles to the law of
defamation. In Branson v Bower (2000) it was said that:

It is important, however, to recognize that the European Convention has not been
directly incorporated into English law. The courts must take these matters into
account when applying domestic law but they should not be regarded as bypassing
our long-established principles. We should use European jurisprudence to assist us
in testing, from time to time, whether our own laws are consistent with the rights
guaranteed under the Convention. European decisions, however, are often difficult
to apply by analogy because they are tied to their own facts . . . In this jurisdiction
it happens that we have a civil law of defamation that is sophisticated and highly
developed and includes a range of defences for the media.

Nevertheless, the law of defamation does involve considerable interference with the freedom
of expression of the media, and is potentially subject to radical revision in the light of the
approach taken by the European Court of Human Rights. The impact of Article 10 on a
number of aspects of the law of defamation has been considered in the case law since 2
October 2000:

Publication: the rule that each separate communication of defamatory words gives
rise to a separate cause of action has been held to be consistent with Article 10,
even when it is applied to publication on the Internet (Loutchansky v Times
Newspapers (2001)).
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