In the third of her series of articles, Angela Patrick charts the development of common law protection for the often-competing rights of freedom of speech and privacy.
From Gorden Kaye to Naomi Campbell, and from Gerry Adams to George Galloway, looking at the protection offered to both free speech and to privacy by the common law and the Human Rights Act 1998 (HRA) necessarily involves a bit of name-dropping. While the headlines might be dominated by stars from the A list to the Z list and by politicians across the political spectrum, the protection offered to speech and to individual privacy matters to us all. From prisoners’ communications and the dignity of people with disabilities to the sex, lies and videotape of celebrity scandal, the rights afforded to both freedom of expression and to our private lives remain important. These cases illustrate how important constitutional protections for rights are to decision-making when the competing interests of individuals and the wider community make easy solutions hard to find.
Freedom of speech
A whistle-stop tour through some of the headline free speech cases of the past 50 years serves to illustrate that while free expression has always been protected by the common law, the value of that protection has not always been beyond question. Some of the strongest leading Strasbourg jurisprudence was formed in challenges brought by UK publishers and print media following unsuccessful cases in the UK. Most famously, in Sunday Times v UK App No 6538/74, 26 April 1979
; (1979–80) 2 EHRR 245, it took the European Court of Human Rights (ECtHR) to uphold the rights of the Sunday Times
under article 10 of the European Convention on Human Rights (ECHR) to publish details critical of the thalidomide settlements secured for the victims of the scandal. An injunction obtained by the attorney-general was upheld by the domestic courts (although later set aside following a settlement). In a seminal judgment, the Strasbourg court, of course, held (para 65):
[F]reedom of expression constitutes one of the essential foundations of a democratic society; subject to [legitimate restrictions] it is applicable 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.
The common law did little to influence the courts in R v Secretary of State for the Home Department ex p Brind and others  1 AC 696
and the House of Lords confirmed that article 10 could not be relied on, since it had not yet been incorporated. Broadcasters sought to challenge the statutory bar on the publication of direct statements by individuals believed to form part of terrorist organisations (the bar that led to the use of ‘dubbed’ speech over the statements of Gerry Adams and Martin McGuinness for much of the 1980s and early 1990s). The help that the common law could offer – a Wednesbury
-shaped challenge – did not assist.
Other cases pre-HRA are well known to human rights and media law students alike, from Goodwin v UK App No 17488/90, 27 March 1996
; (1996) 22 EHRR 123 on journalists’ sources to the publication of Spycatcher
. In Derbyshire CC v Times Newspapers Ltd and others  AC 534
, the House of Lords held that local authorities would not be permitted to sue in libel, as it would be a disproportionate interference with free expression. Lord Keith was clear the assistance of article 10 was not required to reach this result, as ‘the common law of England is consistent with the obligations assumed by the Crown under the treaty in this particular field’. Domestic courts consistently found that article 10 would add little to the ordinary common law, but with mixed results. Widespread prior publication could not prevent a claim for damages based on the common law of confidence in Attorney-General v Guardian Newspapers Ltd (No 2)  1 AC 109
Yet, on the eve of the HRA coming into force, the House of Lords discovered a new-found enthusiasm for the principle of legality, giving the common law protection of human rights a boost on which further judicial eagerness has built. Quashing a bar on prisoners meeting with journalists, the House of Lords was robust in its defence of free speech (R v Secretary of State for the Home Department ex p Simms  2 AC 115
). Lord Steyn’s speech is worth review in full beyond its most quoted extracts: ‘Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important.’ Lord Hoffmann confirmed that while the HRA was not yet in force, the common law would serve well without it:
Parliamentary sovereignty means that parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power … But the principle of legality means that parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words.
This principle of legality forms one of the core tenets for the protection of fundamental rights in the common law. In free speech cases, including in those where the article 10 case law of the ECtHR may not be entirely helpful, common law protection can serve a valuable function. In Kennedy v Charity Commission  UKSC 20
;  1 AC 455, for example, the court departed from the arguments pursued by the parties and determined that article 10 arguments were not needed when the common law would do. This claim involved a challenge brought by a journalist seeking information about the Mariam Appeal – a charity run by George Galloway. Lord Mance considered the Strasbourg case law on article 10 ‘neither clear nor easy to reconcile’ (para 59; see paras 57–100). The justices determined that article 10 could not help and found a solution, albeit one based on the fundamental right of open justice protected in the common law. (The Grand Chamber has since confirmed that article 10 does provide protection for freedom of information – see Magyar Helsinki Bizottság v Hungary App No 18030/11, 8 November 2016
Privacy and private life
Privacy has long formed a strong seam of the English common law. Of course, the phrase ‘the Englishman’s home is his castle’ might have been coined for Entick v Carrington (1765) 19 St Tr 1030
and its recognition that fundamental requirements of the common law prevent search and seizure by the state without lawful warrant. Yet, for pre-HRA students of civil liberties, it was well known that there was no tort of privacy in the English common law. Except and in so far as privacy rights could be framed within other common law causes of action, an individual would have no remedy. Gorden Kaye (then of ’Allo, ’Allo fame) was unable to prevent a tabloid newspaper taking pictures of him while he was in hospital receiving treatment following a serious car accident: ‘It is well-known 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’ (Kaye v Robertson  FSR 62
; see also Wainwright and another v Home Office  UKHL 53
;  2 AC 406).
Yet, on the introduction of the HRA, individuals gained a free-standing right to respect for private life. From Naomi Campbell to Catherine Zeta Jones, early litigants discovered that ECHR article 8 was capable of providing a statutory remedy for invasions of privacy where none had come before. The influence of the incorporation of article 8 case law, however, has been to further urge the evolution of the protection offered for aspects of privacy, in libel and in confidence, by the common law. While Gorden Kaye had no remedy at the hospital for the invasion of his privacy, article 8 damages were available for Naomi Campbell, who was photographed leaving Narcotics Anonymous (Campbell v Mirror Group Newspapers Ltd  UKHL 22
;  2 AC 457). Redolent of the development of the law on expression, the common law has since evolved to mirror some of the broader aspects of article 8, which it would not have done pre-HRA. Thus, in Google Inc v Vidal-Hall and others  EWCA Civ 311
;  QB 1003, the Court of Appeal provided its most recent confirmation that there is, distinct from the protection offered in article 8 and the common law of confidence, a common law tort of misuse of private information.
The protection offered by article 8 and the HRA has, of course, gone far further than the interface between the public interest in publishing and the private lives of others. While the common law recognised that the state must treat people humanely (R v Eastbourne (Inhabitants)
(1803) 4 East 103; 102 ER 769), comply with the common law principle of equality (Matadeen v Pointu
 3 LRC 542;  1 AC 98
) and respect the principle of autonomous consent (Re T (Adult: Refusal of Treatment
)  Fam 95
), the express protection offered for dignity and personal privacy was limited. Now, article 8 offers protection in a range of circumstances where dignity and personal autonomy are key, for example, securing adequate accommodation for disabled people in their homes (R (Bernard) v Enfield LBC  EWHC 2282 (Admin)
) and freedom from unnecessary and unjustified surveillance (see, for example, Paton v Poole BC
IPT/09/01/C, 29 July 2010).
Article 8 rights are not absolute and, of course, have their limits. In a judgment that was controversial for many reasons, the majority in the Supreme Court in R (Nicklinson and another) v Ministry of Justice; R (AM) v Director of Public Prosecutions  UKSC 38
;  1 AC 657 concluded that article 8 was violated, but insufficient of their number agreed to make any declaration of incompatibility, preferring to leave the issue of assisted suicide to parliament. Five justices (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) held that the general prohibition on assisted suicide was incompatible with article 8. However, Lord Neuberger, Lord Mance and Lord Wilson declined to grant a declaration of incompatibility.
The extent to which article 8 rights, taken together with article 14, might offer a remedy in cuts cases is being determined on a case-by-case basis (see, most recently, R (DA and others) v Secretary of State for Work and Pensions  EWHC 1446 (Admin)
Common law guarantees or the protection of ECHR rights?
Pre-HRA, common law on free speech was said to have kept pace with ECHR rights even before the Act came into force. On privacy, the common law refused to recognise express privacy rights without a statutory stamp of approval from parliament. These crucial, but occasionally competing, rights enjoy a degree of clarity and remedial certainty in the protection offered by the HRA. However, the case law illustrates that this renewed legal certainty has not necessarily made for easy or simple answers. Yet the refusal of the Supreme Court in Nicklinson to grapple with the bounds of HRA s4 and the significance of a declaration of incompatibility only serves to illustrate that the remedies in the HRA are not without their own difficulties.
The incorporation of ECHR rights has shifted forward the development of the common law and the protection it offers both free expression and privacy.
These cases will always remain difficult. It is precisely the work involved in finding the balance in cases of competing individual – or community – interests that makes the continuing evolution of our understanding of the common law and ECHR rights so important. The legal tools provided by the HRA could and should necessarily be sharper. There is no denying, however, that the incorporation of ECHR rights has shifted forward the development of the common law and the protection it offers both free expression and privacy. The common law (and the protection that it offers) has proved more comfortable for some members of the judiciary in grappling with issues where the competing interests of individuals or the wider interests of the community are at stake. However, the boundaries of the protection offered in the case law remain, as ever, ill-defined.
For those of a repealing bent, it is worth remembering that the common law rights we enjoy have not flourished best in glorious isolation, but under the most recent influence of a judiciary well-schooled in the law of the ECHR. For the media outlets most vociferously in favour of a post-HRA settlement, it is worth remembering that reform cuts both ways: what might be gained in constraining privacy might be lost in protection for freedom of expression.
Those working to promote robust legal protection for both free speech and privacy should welcome both the protection offered for ECHR rights in the HRA and the guarantees for fundamental rights drawn from the common law. Tricky problems will always need a range of solutions.