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Influencing Privacy, Libel and Freedom of Expression Law

‘Judicial Reasoning’ edited by Fenwick, Philipson and Masterman.  Credit: Fenwick and Phillipson

From 2002 to 2005 the AHRC funded a research project carried out at Durham University, entitled ‘Judicial Reasoning under the Human Rights Act.’ Led by Helen Fenwick, with strong involvement by Gavin Phillipson, a significant aspect of the project focussed upon how to balance issues of free speech with personality rights, such as privacy and reputation; the project’s outputs have significantly affected contemporary law and policy around media injunctions, privacy, and libel reform. The official project output was Judicial Reasoning under the Human Rights Act (CUP, 2007, edited by Fenwick, Phillipson and Masterman) but it also fed strongly into the development of Fenwick and Phillipson’s Media Freedom under the Human Rights Act (OUP, 2006). The individual paper that Phillipson gave as part of the project also led to an article, ‘Transforming Breach of Confidence? Towards a common law right to privacy under the Human Rights Act’ (2003) 66(5) Modern Law Review 726-59. All these outputs devote sustained attention to the reception in English law of Articles 8 and 10 of the European Convention on Human Rights (ECHR), which together balance privacy and reputation against freedom of expression.

The Modern Law Review article has been widely cited with approval by appellate courts in the UK and beyond, specifically by the Court of Appeal (Douglas v Hello (No 3) [2005)), the UK’s then top court, the House of Lords (Campbell v MGN (2004)) and the Court of Appeal in New Zealand (Hosking v Runting (2003). In addition, the analysis of leading UK and European privacy cases in the Media Freedom book was discussed by the UK Court of Appeal in McKennitt v Ash (2006). Professor Phillipson was also asked to give evidence to the government’s Joint Committee on Privacy and Injunctions in October 2011, which was established after concerns around the granting of ‘super injunctions’. The Joint Committee quoted Phillipson’s evidence in its recommendation that section 12 of the Human Rights Act did not need reform.(1)

In 2010 Professor Phillipson was invited to be the sole academic member of the Ministry of Justice Libel Working Group, formed to consider options for reform of defamation law, which balances the right to freedom of expression with the protection of reputation. Phillipson summarised research from the Media Freedom book in a report to the Group that helped convince the Ministry that proposals for a more radical pro-media reform would over-privilege free speech and risk breaching Article 8 ECHR. Proposals from the report were eventually embodied in the Government’s Defamation Bill. Professor Phillipson was thus influential in shaping the direction of this bill, which would become the Defamation Act 2013. Part of the Bill’s scrutiny in Parliament was carried out by the Joint Committee on Human Rights, which drew on Professor Phillipson’s views when making their recommendations on the human rights issues surrounding the proposed reforms.(2)

The research from this AHRC funded project also fed into a submission by the Media Law Association (MLA) to the Grand Chamber of the European Court of Human Rights. The submission related to two cases coming before the Grand Chamber, and argued, citing the Media Freedom book, that Article 8 ECHR had been over-extended in a previous, ground-breaking judgment concerning Princess Caroline of Hannover and thus given too much weight over freedom of speech. The Grand Chamber judgment cited the MLA’s submission and responded to it by shifting the balance between the two rights towards freedom of speech, in a case that was seen as a significant victory for the press. The Court’s judgments bind the state party to the case and govern the interpretation of the Convention, which covers all 47 states of the Council of Europe.(3)

(1)Parliamentary Joint Committee on Privacy and Injunctions. Report (HL Paper 273, HC 1443 (2010-12)): [55] [59]

(2)This was in two places in the Report of the Joint Committee on Human Rights on the Defamation Bill [29-34], [55]:

(3) Media Lawyers Association, Third Party Intervention to the European Court of Human Rights in Von Hannover No 2, 6 August 2010, [16-17]; fn 14 and 17 10. Von Hannover v Germany (No 2), Application 40660/08 and 60641/08 (7 Feb 012):at[122-123].