There are three clauses of the Bill of Rights Bill [pdf] which, if enacted in their current form, would have a direct impact on freedom of expression cases. These are clauses 4 (‘Freedom of speech’), 21 (‘Limit on court’s power to require disclosure of journalistic sources’) and 22 (‘Limit on court’s power to grant relief that affects freedom of expression’).
The potential impact of the latter two clauses seems relatively inconsequential.
Clause 21 would amend s.10 of the Contempt of Court 1981 to provide, in relation to “journalistic sources” (see cl.37(1) & Sch.5, para.1(3) to the Bill), that before requiring a person to disclose, or finding a person guilty of contempt of court for refusing to disclose, the identity of a journalistic source, the court would have to be satisfied not only that such disclosure was necessary in the interests of justice or national security or for the prevention of crime or disorder (as per the current s.10), but also additionally that “there are exceptional and compelling reasons why it is in the public interest for the disclosure to be made” (cl.21(1)(b)).
However, the present position in law is already in effect (owing to the impact of Strasbourg jurisprudence) that the court would not make such an order or finding unless there were exceptional and compelling reasons why it was in the public interest for the disclosure to be made: see Mersey Care NHS Trust v Ackroyd [2008] EMLR 1 (CA) at [17]. Accordingly, the amendment would be unlikely to make any great difference. The law and the courts already (as per cl.21(2) of the Bill) “give great weight to the public interest that exists in protecting journalistic sources” in such situations, “including the fact that their protection supports the Convention right set out in Article 10 of the Convention (freedom of expression)” (sic). The intention thus appears to be one of codification of the common law or, less kindly, gestural. The Explanatory Notes to the Bill (paras.189-192) shed no further light.
So far as cl.22 is concerned, it substantially replicates s.12 of the Human Right Act 1998 (‘HRA’), which is to be repealed along with the rest of the HRA on the enactment of the Bill: see cl.1(1) & Sch.5, para.2. The only real difference between s.12 and cl.22 is the insertion into cl.22(2)(b) of the adjective “exceptional”. This would apply in circumstances where the application was one affecting speech – typically, for an interim injunction to prevent publication – and the applicant proposed not to notify the respondent of the application, e.g., in a tipping off or blackmail case. The effect of the amendment would be that the applicant would have to show not just “compelling reasons” why the respondent should not be notified but “exceptional and compelling” ones.
But again, since in practice in speech-based cases an applicant is already required by s.12(2) HRA to demonstrate exceptional reasons why the respondent should not be notified before the court exceptionally grants an injunction or similar relief against someone who has not been notified of the application – see the Master of the Rolls’ Practice Guidance: Interim Non-Disclosure Orders [2012] 1 WLR 1003, at paras.5 and 18-23, and Birmingham City Council v Afsar [2019] ELR 373 (Warby J) at [20] – it seems unlikely that this amendment would make much of a difference either. Even as a matter of English, the word “exceptional” does not appear to add a great deal to “compelling”.
It may be noted, however, that, if the Bill as a whole were enacted in its current form, the context in which the court would be applying under cl.22 the familiar tests that formerly appeared in s.12 HRA is liable to be very different: see further below about cl.4 of the Bill.
The impact of the new freedom of speech clause
The impact of cl.4 of the Bill (‘Freedom of speech’) on freedom of expression cases, in contrast to cls.21 and 22, is liable to be far-reaching.
The clause provides as follows:
“4 Freedom of speech
(1) When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.
(2) In this section “the right to freedom of speech” means the Convention right set out in Article 10 of the Convention (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).
(3) This section does not apply –
(a) in criminal proceedings or to the determination (in other proceedings) of any question whether a provision of primary or subordinate legislation that creates a criminal offence is incompatible with a Convention right;
(b) to the determination of any question whether the disclosure of information would be in breach of an obligation of confidence which –
(i) arises under an agreement with any person, or
(ii) arises (otherwise than under an agreement) as a result of a professional relationship with any person;
(c) to the determination of any question relating to –
(i) whether a person is entitled to enter, or remain in, the United Kingdom, or
(ii) a person’s citizenship;
(d) to the determination of any question the determination of which affects or may affect national security.” (emphasis added)
Three things about this clause may be noted straightaway.
Firstly, and most obviously, clause 4(1), if enacted, would impose a statutory obligation on the court to give “great weight to the importance of protecting” the right to freedom of speech in most civil cases involving speech or expression. The phraseology seems to be derived from s.12(4) of the HRA (“The court must have particular regard to the importance of the Convention right to freedom of expression…”). But the idea that the court should be obliged to give “great weight” in almost all circumstances in civil litigation to the importance of protecting the right to freedom of speech as opposed to the importance of protecting any other right – particularly Art.8 rights to respect for private and family life including where appropriate rights to protection of reputation and good standing – is clearly new.
Secondly, clause 4(1) would only require the court to give great weight to the importance of protecting the right to freedom of speech, not any (Art.10 or common law-based) right to receive information: see cl.4(2). If the distinction in cl.4(2) were not drawn in the way that it is, it could in principle entail an enhanced personal right to access information including governmental information (see in this context the discussion in Kennedy v Information Commissioner [2015] AC 455 (SC)). The Government presumably regards this as undesirable, although the relevant Explanatory Note (para.56) offers no assistance.
Thirdly, clauses 4(3)(b) & (d) would relieve courts of the cl.4(1) obligation to give great weight to the importance of freedom of speech in cases relating to alleged breaches of confidence where the duty of confidentiality was said to arise from a contract – including, it would seem, in the employment context, non-disclosure agreements (‘NDAs’), which have been criticised as being against the public interest (see ABC v Telegraph Group Ltd [2019] EMLR 5 (CA) at [39]) – or a professional relationship between the claimant and another person, and in cases involving national security. The latter would preserve if not strengthen the hand of the Government in any future case like Attorney General v BBC [2022] 4 WLR 74, in which an injunction was successfully sought to restrain the BBC from broadcasting information about a MI5 covert human intelligence source who had criminally abused two women.
Beyond this, before offering any evaluation of the possible general impact of cl.4 on freedom of expression cases, it is necessary to consider the clause in its context. The immediate and most important context of cl.4 is cl.3 of the Bill. This is the clause that will, if the Bill is enacted, replace s.2 of the HRA.
Interpretation of the Convention rights
As matters stands, s.2 HRA requires a court determining a question which has arisen in connection with a Convention right to take into account any relevant judgment, decision, declaration or advisory opinion of the European Court of Human Rights (‘ECtHR’) (among other things).
Clause 3 of the Bill, if enacted, would substitute for s.2 a markedly different regime for the interpretation of Convention rights by UK courts.
Materially, clause 3 provides as follows:
“3 Interpretation of the Convention rights …
(2) A court determining a question which has arisen in connection with a Convention right –
(a) must have particular regard to the text of the Convention right, and in interpreting the text may have regard to the preparatory work of the Convention;
(b) may have regard to the development under the common law of any right that is similar to the Convention right;
(c) must comply with sections 4 to 8.
(3) A court determining a question which has arisen in connection with a Convention right –
(a) must not adopt an interpretation of the right that expands the protection conferred by the right unless the court has no reasonable doubt that the European Court of Human Rights would adopt that interpretation if the case were before it;
(b) subject to paragraph (a), may adopt an interpretation of the right that diverges from Strasbourg jurisprudence.
(4) Subsection (3)(a) does not prevent a court from adopting an interpretation of a Convention right where it does so as a result of complying with section 4 (freedom of speech)…” (emphasis added)
This clause raises many far-reaching issues, not least in terms of: the relationship between current domestic law, suffused as it is with the principles and policy of Strasbourg jurisprudence, and ex hypothesi post-Bill of Rights domestic law in circumstances where the courts have been given a discretion to ignore Strasbourg case law and to “diverge” from it; the apparent tension between the interpretative obligations that would be imposed by cl.3 and the court’s duty as a public authority not to act in a way that is incompatible with a Convention right, a duty which is preserved by cls.12(1) & 34 of the Bill albeit subject to a limited ‘carve-out’ in cl.12(2); and the apparent tension between the interpretative duties which cl.2 imposes on courts and courts’ further duty to ensure as far as they can that the UK complies with its treaty obligations in international law arising from the UK’s status as a State Party to the European Convention on Human Rights (‘ECHR’).
But subject to this, the things that strike me most forcefully in terms of the potential impact on freedom of expression cases if clauses 3 & 4 were enacted as proposed are these:
(1) The application of clauses 3(2)(c), 3(4) & 4(1) in ‘freedom of speech’ cases (so defined) would bring about a situation whereby the right to freedom of speech was accorded presumptive priority over any other right including specifically the Art.8 right to respect for private and family life, home, and correspondence. It is surely impossible to interpret a duty to give “great weight” to the importance of protecting freedom of speech, certainly in the absence of an analogous duty to give great weight to the importance of protecting any other right, in any other way. This is to be contrasted with the current law of misuse of private information and the law governing the grant of derogations from open justice including in the family courts, both of which rest fundamentally on Art.10 and Art.8 standing in a relationship with one another of presumptive parity: see Campbell v MGN Ltd [2004] 2 AC 457 (HL), Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 (HL), PJS v News Group Newspapers Ltd [2016] AC 1081 (SC) and ZXC v Bloomberg LP [2022] 2 WLR 424 (SC).
(2) Every claim of misuse of private information involves on its facts questions “aris[ing] in connection with a Convention right” (as per cl.3(2)) – typically Arts.8 and 10 but also less frequently Arts.2, 3 & 6 – and, if the Bill were enacted, each will also involve questions “aris[ing] in connection with the right to freedom of speech”, as that right is defined in cl.4(2). The effect of this would surely be that each case of alleged misuse of private information arising after the enactment of the Bill, except those falling within cl.4(3), would have to be approached in a quite different way from before, so as to give presumptive priority to freedom of speech.
(3) Giving presumptive priority to the right to freedom of speech in privacy cases would not mean that freedom of speech once again became, in Hoffmann LJ’s memorable phrase in R v Central Independent Television plc [1994] Fam 192 at 203E, “a trump card which always wins”. There is no prospect of the law going back to Kaye v Robertson [1991] FSR 62, in which the Court of Appeal pronounced that, “in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy”. A strong Art.8-based case would still prevail on its facts, however much weight the importance of protecting freedom of speech was presumptively given. One wonders, for example, whether the existence at the relevant time of a statutory provision in the form of cl.4(1) would have made any difference to the outcome of Cliff Richard’s privacy claim against the BBC.
Furthermore, so much is explicitly contemplated in the Explanatory Notes to the Bill at para.58: “The great weight given to the importance of freedom of speech does not create an absolute right to freedom of speech. Even with greater weight attached, freedom of speech remains a qualified right and is subject to the qualifications set out in Article 10(2) of the Convention”.
But still, there is no question that if the Bill were enacted, the effect of cls.3 & 4 would be that a publisher defendant would be being given a significant head start over a privacy claimant in comparison with how matters stand today.
(4) Clause 3(4) of the Bill expressly licenses courts to adopt an interpretation of Arts.8 and 10 that diverges from the interpretation placed upon those rights in Strasbourg jurisprudence if that is the consequence of complying with their duty in cl.4(1) to give great weight to the importance of protecting the new UK right to freedom of speech. Clearly, the nature of the divergence that is contemplated is one that skews the balance between Arts.8 and 10 – a balance inherent in those Articles themselves given the terms of Arts.8(2) and 10(2) – in favour of freedom of speech. The Government contemplates that cl.3(4) and the legal results that it might produce when applied by domestic courts would be Convention-compliant as falling within the UK’s ‘margin of appreciation’: see para.52 of the Explanatory Notes.
Whether the Government turns out to be right about this remains of course to be seen. However, it appears to me doubtful.
The doctrine of ‘margin of appreciation’ exists to recognise and tolerate minor local differences in the interpretation of Convention rights and not wholesale departures from their essential character and structure. Nevertheless, subject to the ECtHR at some point in the future finding the UK Government in breach of its Convention obligations, and the UK Government and Parliament at that time considering themselves obliged to amend domestic law in the light of that adverse ruling, domestic courts determining civil claims involving speech in the meantime would be at liberty to adopt an interpretation of Art.10 “that expands the protection conferred by [that] right” at the expense of Art.8 rights “where [they do] so as a result of complying with section 4 (freedom of expression)”: see cls.3(3)(a) & 3(4).
Whether, and to what extent, they would opt to exercise this power also remains to be seen. But the chances are that judges would strive faithfully, as they always do, to give effect to what would be Parliament’s clearest intention, subject only to concerns that they might have about the lawfulness of the decisions that applying the new canon of interpretation produced so far as concerned their compatibility with Convention rights (see cl.12(1) of the Bill) and also in the international law context. Doing so would inevitably generate a new case law whose hallmark would be claimants finding it far harder to assert and exercise their Art.8 privacy rights against the media and other publishers than they do today.
(5) The considerations to which I have referred above arising from cls.3 & 4 would be unlikely to affect defamation or malicious falsehood cases in the same way as misuse of private information claims. This is primarily because Convention rights, and the striking of a balance between those rights, have not had as important or overt a role to play in these long-standing torts as in the relatively new tort of privacy. As Lord Wilson observed in Serafin v Malkiewicz [2020] 1 WLR 2455 (SC) in relation to the public interest defence in s.4 of the Defamation Act 2013 at [74]: “…just as the common law [Reynolds] defence was developed under the influence of Convention principles…, so was the statutory defence. Its three requirements…are intended, and may generally be assumed, to ensure that operation of the section generates no violation either of the claimant’s right under article 8, or of the defendant’s right under article 10”.
The same can reasonably be said of the law of defamation in general. There are few defamation cases in which Convention rights have made any real difference. The same goes for malicious falsehood. Claims for malicious falsehood are unlikely to engage Art.8 at all. And so far as concerns rights to freedom of expression or speech, as Warby LJ recently observed in George v Cannell [2022] EWCA Civ 1067 at [70]: “I accept that being sued at all [in a case concerned with speech] is an interference with freedom of expression. But the point has scant attraction in cases such as this. The remedy for those in the position of these defendants is to avoid conspiring to utter false, malicious, and financially damaging statements, or to settle the claim promptly if discovered to have done so”.
Another reason why cls.3 & 4 if enacted are unlikely to have a major impact on defamation and malicious falsehood cases, in contrast to privacy claims, is that the importance of protecting the right to freedom of speech is already, in a variety of contexts, given great weight in these torts: see, e.g., the special rule governing the grant of interim injunctions derived from Bonnard v Perryman [1891] 2 Ch 269 (CA), endorsed in the post-HRA era in Greene v Associated Newspapers Ltd [2005] QB 972 (CA), the obligation on a claimant in defamation to prove serious harm to their reputation, and the requirement for a claimant to prove falsity and malice in malicious falsehood.
Prioritising free speech
Overall, the Government’s general purpose and project in tabling cls.3(2)(c), 3(4) & 4 of the Bill seems clear: to move the courts operating in the media and communications field and therefore the applicable law away from a position whereby free speech rights stand in a relationship of presumptive parity with Art.8 to a position whereby speech rights are prioritised over any other right (except in claims relating to professional or contractual confidences or national security) and thus to make it harder for people to bring Art.8-based claims before the court and succeed in obtaining remedies.
The big question is would it work? While judges would doubtless do their best to give effect to Parliament’s intention and make the plan work, it is surely not impossible – such is the degree of the deviation from the ECHR, specifically Art.8, that the application of cls.3 & 4 would necessarily entail – that the court would feel compelled to declare those provisions incompatible with Convention rights in accordance with cl.10 of the Bill (which preserves the substance of s.4 of the HRA). Were that to happen, it would then be for the Government and Parliament in place at that time to decide what to do.
Even if the court were to stop short of taking that radical step, any decision of the court that applied cls.3 & 4 in a way that failed to give a person’s Art.8 rights a Convention-compliant level of respect would clearly be readily susceptible to challenge in Strasbourg. If the ECtHR were then to find the UK in breach of its obligations under the Convention in respect of Art.8, then, again, it would be for the Government in place at that time to decide what, if anything, to do.
So, to conclude, by way of summary, the impact of cls.21 & 22 of the Bill on freedom of expression cases is likely to be minimal, but the enactment of cls.3(2)(c), 3(4) & 4 of the Bill, in relation to the broad run of privacy cases at any rate, is liable to be akin to a reinvention of the wheel.
Godwin Busuttil is a barrister at 5RB in London. He is also a General Editor of Gatley on Libel and Slander (13th ed., Sweet & Maxwell, 2022) and a contributor to The Law of Privacy and the Media (Oxford University Press), which is about to go into its fourth edition.
This article was originally published on the Constitutional Law Matters website which is a project run by the Faculty of Law, University of Cambridge. It is republished with their kind permission.