Freedom of the Press in UK Law

In essence article 10 leaves it for journalists to decide what details it is necessary to reproduce to ensure credibility: see Fressoz v France (1999) 31 EHRR 28, para 54. So the BBC are entitled to say that the question whether D's identity needs to be disclosed to give weight to the message that the programme is intended to convey is for them to judge. The issue as to where the balance is to be struck between the competing rights must be approached on this basis.

What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. For convenience I will call this the ultimate balancing test.

It is not surprising that in this case the misery of a five-year-old girl weighed more heavily with Kirkwood J. than the television company's freedom to publish material which would heighten the dramatic effect of its documentary. The principle that the press is free from both government and judicial control is more important than the particular case.

The injunctive powers of the court can only be invoked in support of a right or in defence of an interest. The point is that Bonnard v Perryman, apart from its reference to freedom of speech, is based on the fact that the courts should not step in to defend a cause of action in defamation if they think that this is a case in which the plea of justification might, not would, succeed.

In my judgment these three cases fall far short of establishing that an individual's article 10(1) freedom to receive information is interfered with whenever, as in the present case, a public authority, acting consistently with the domestic legislation governing the nature and extent of its obligations to disclose information, refuses access to documents.

The freedom of the press is extolled as one of the great bulwarks of liberty. No restraint should be placed on the press as to what they should publish. It means that the press is to be free from what Blackstone calls "previous restraint" or what our friends in the United States—co-heirs with us of Blackstone—call "prior restraint". The press is not to be restrained in advance from publishing whatever it thinks right to publish.

It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment.