Revising the Human Rights Act 1998: boosting the right to freedom of expression

What is the development?

The UK Ministry of Justice issued a consultation in December 2021 entitled 'Human Rights Act Reform: A Modern Bill of Rights'.  The consultation seeks views on the government's proposals to revise the Human Rights Act 1998 (HRA 1998) and replace it with a Bill of Rights. One striking element of the proposals is an emphasis on the right to freedom of expression and a potential rebalancing of the tension with the right to privacy. This is likely to have an impact on journalism and the media.  

What is the current position?

The European Convention on Human Rights (ECHR) was founded following the Second World War and Nuremburg Trials in order to guard against the rise of new dictatorships, another European War and the spread of communism. Using an overarching set of principles, the ECHR sets a consistent standard of rights for all 47 Convention States and citizens can bring claims for violations of the Convention by their countries to the European Court of Human Rights (ECtHR) in Strasbourg.  

Britain signed the Convention in 1950.  It was not until 2000, however, that the ECHR was incorporated directly into English law via the Human Rights Act 1998 (HRA).  Under the HRA, the courts and other public authorities must act compatibly with the rights and freedoms contained in the ECHR and take ECtHR jurisprudence into account.  

Article 8 of the Convention entitles everyone to respect for "his private and family life, his home and his correspondence". Under Article 10 everyone has the right to freedom of expression, including the right to "hold opinions and to receive and impart information and ideas". However, neither right is absolute and both rights are qualified.  

Under Strasbourg jurisprudence (and English law), neither right takes automatic precedence over the other, both being fundamental in a democracy.  The courts are required to carefully balance these competing rights and weigh up the proportionality of interfering with each right.  

This balancing exercise has regularly been carried out by the courts, particularly in defamation and privacy cases. Under Section 12 HRA, the UK courts are required, for example, to have particular regard to the Convention right of freedom of expression and cannot restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.  

What does the consultation propose in relation to freedom of expression?

The government disagrees with what it believes is Strasbourg's incorrect prioritisation of personal privacy over freedom of expression. It also says the majority of online speech is now facilitated by a small number of private companies with significant influence over what content appears online and that this threatens freedom of speech.  In addition, it says that it wants to give greater protection to academic free speech.  

The government proposes strengthening the protection for freedom of expression in the HRA by amending Section 12, making it "stronger and more effective" to make it clear that "the right to freedom of expression is of the utmost importance, and that courts should only grant relief impinging on it where there are exceptional reasons".

It wants to provide more guidance on how to balance the right to freedom of expression with competing rights (such as the right to privacy) or wider public interest considerations and says it does not believe such principles should be merely left to the courts to develop. Instead, the government "believes there should be a presumption in favour of upholding the right to freedom of expression, subject to exceptional countervailing grounds, clearly spelled out by Parliament."

The exceptions to free speech which the government cites are "the need to protect national security, keep citizens safe and take steps to protect against harm to individuals". On protecting people from harm, the consultation refers specifically to criminal law (but not to civil causes of action such as defamation and privacy).

The consultation says it wants to make specific provision for journalists’ sources in the Bill of Rights, to make sure they are properly protected.  However, there is no reference the fact that Section 10 Contempt of Court Act 1981 already does this.

Currently, Section 2 HRA states that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgement of the ECtHR. Section 3 HRA says that legislation must be read and given effect in a way which is compatible with Convention rights as far as it is possible to do so. Section 6 HRA states that "it is unlawful for a public authority [such as the court] to act in a way which is incompatible with a Convention Right". The consultation proposes that UK courts will no longer be "required to follow or apply any judgement or decision of the European Court of Human Rights", which will mean that Sections 2, 3 and 6 HRA will need to be amended.

Although the proposals provide that UK courts may have regard to relevant judgements from other countries and international courts, the intention is that 'the UK Supreme Court will have ultimate responsibility for interpreting the rights under the Bill of Rights.'

The government is considering whether it can draw any lessons or guidance from other strong models of protection for free speech such as those found in the United States (ie under the First Amendment) or South Africa.

The consultation questions on freedom of expression

The consultation seeks views by 8 March 2022. The questions about freedom of expression are:

• How could the current position under section 12 of the HRA be amended to limit interference with the press and other publishers through injunctions or other relief?
• The government is considering how it might confine the scope for interference with Article 10 to limited and exceptional circumstances, taking into account the considerations above. To this end, how could clearer guidance be given to the courts about the utmost importance attached to Article 10? What guidance could we derive from other international models for protecting freedom of speech?
• What further steps could be taken in the Bill of Rights to provide stronger protection for journalists’ sources?
• Are there any other steps that the Bill of Rights could take to strengthen the protection for freedom of expression?

What would this mean for UK media law?

If Article 10 presumptively becomes more important than Article 8, this could have a wide-reaching effect on UK media law, including defamation and privacy and the journalistic exemption in data protection law.  

At present, the courts carefully scrutinise the competing rights and balance them to try to come to just decisions in each case.  If there were a legal presumption in favour of freedom of expression, and individual rights could only prevail in exceptional circumstances, this could make it more difficult for people to bring successful defamation, privacy, and data protection claims.  It could also  make it harder to take action against abusive and hate speech if a consequence was to raise the bar on tolerable free speech.  

On the other hand, it would support the media, those who publish or utter controversial views and publications which disparage people or write about their private life, particularly in connection with matters of public interest. It could also potentially increase the protection of social media companies from liability relating to the exercise of free speech by their users.