Press Freedom — How the Beast was Tamed

Publication Date01 Jan 1991
DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb02638.x
AuthorColin Munro
REPORTS
Press Freedom
-
How
the Beast was Tamed
Colin
Munro”
Consider these terms of rcfcrence:
In
the light of recent concern about the dangers to freedom of speech, to examine those aspects
of the law which enable public authorities (including the courts) to regulate or restrain the
publication
of
information by newspapers and broadcasters,
or
to rcquire persons who
disseminate information to the public to rcveal the sourccs
of
that information; and to make
recommendations as to what measures are needed to give further protection to frccdom of
speech as the fundamental value
of
our democratic society.
These were not the terms of reference of the Calcutt Committee, which was appointed
by the Government
in
1989
to report on privacy and related matters.’ They were
(subject to the addition of a few minor embellishments) the terms of reference
of
a Justice committee which reported
in
1990,
shortly before the Calcutt Committee,
and to very different effect.2 Calcutt was asked:
In the light of the recent public conccrn about intrusions into the private livcs of individuals
by certain sections of the
press,
to consider what measures (whether legislative or otherwise)
are needed to give further protcction to individual privacy from the activities of the press
and improve recourse against the press for the individual citizen, taking account of existing
remedies, including the law on defamation and breach of confidence; and to make
recommendations
.3
The answer you get depends on the question you ask, and the question presented
to the Calcutt Committee assumed that the mischief lay
in
the freedom allowed to
the press rather than the limitations upon that freedom, and invited the respondents
to choose between different possible remedies for the
ill.
The Government’s approach
might seem to be a curious inversion of the principles to which
it
is morally committed
by its acceptance
of
the European Convention on Human Rights. Under Article
10
of the Convention, the right to freedom of expression
is
paramount, and the limited
exceptions which may be made are only such as are ‘necessary
in
a democratic
society’ and permissible only to the extent that they correspond to a ‘pressing social
need’ and are proportionate to the end to be achievedSJ The committee was not
unaware of the requirements of the Convention. Indeed,
it
purported to ‘start from
a position that freedom of expression is ~re-eminent’~ and considered that ‘any
additional constraints upon the press should be limited to the minimum necessary
to tackle any genuine abuses.’6 However,
it
is
in
the nature of a liberty that some
persons may ‘abuse’ it, and
it
is not obvious that restrictions ought to be imposed
on the liberty merely because of that unless, of course, one operates under that
preconception.
*Professor
of
Constitutional
Law,
University
of
Edinburgh.
I
2
3
4
5
6
Report
of
the
Cortrrnittcle
oii
Privucy
uird
Reluted
Mcirters,
Cni
I
102 (1990).
Freedoin
of
Expressiorr
tint1
the
I~iw
(1990).
01)
cit
note
I,
para
1.1.
Sio~dry
Tirtres
v
Uiiircd
Kitighri
(1979)
2
EHRR
245.
cip
cit
note
I,
para
3.18.
up
cif
note
I,
para
2.9.
104
711~.
Moderir
Lnw
Rcvie~
54:
I
Jatluary
1991
0026-7961

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