It’s pretty safe to say that it isn’t too often that The European Convention on Human Rights, originally set out in 1950, isn’t something that gets cited too often in casual debates around freedom of expression. Yet two particular articles sit at the heart of many debates surrounding the press and, arguably, in many debates around our society in general.
Article 8 states:
“everyone has the right to respect for his private and family life, his home and his correspondence.”
A simple sentiment, but one which sits at the core of the spate of recent super injunction cases and which is frequently winning arguments in court. The sentiment is one which few would realistically argue with; we all have a right to privacy, an essential aspect of a truly free society.
Key to the discussion around super injunctions is the interpretation of this right to privacy as the right to a protection of reputation.
Reputations are legally perceived to have a monetary value and, as dictated by legal precedent in the UK courts, everyone starts with a good reputation – unless proven otherwise. This idea sits at the heart of defamation rulings, the idea that the unfair tarnishing of someone’s reputation can have a negative effect on their potential income.
And yet all too often this idea is emphatically contradicted by the opening line in Article 10 of the same convention:
“Everyone has the right to freedom of expression”.
Essentially, everyone has the right to say what they want, when they want to – and if that is damaging to someone else’s reputation, so be it.
With two such contradictory statements at the heart of super injunctions and defamation rulings, it’s easy to see why cases can last for years following the original comments and/or story.
Nevertheless Article 8 has dominated proceedings in recent years, and a key reason for this is Mr. Justice Eady. If you don’t know Mr. Justice Eady, he is a UK judge frequently appointed to high profile defamation cases.
Numerous publishers have bones to pick with him and it’s rumored that champagne corks were being popped around Fleet Street (metaphorically speaking, at least) when he announced that he was standing down, and it looks as though his replacement might be somewhat more liberal towards freedom of expression, meaning we could see some change in precedence over the coming years.
The phrase “in the public interest” is frequently bandied about in defamation cases. This is the happy compromise between the two articles; you can only impact on someone’s reputation if it’s in the public interest.
So while it might not be in the public interest to know that Princess Caroline of Monaco goes out to dinner with her kids, (unsurprisingly, she received compensation over photographs published of just this), but that it might be good for the public to know about the less-than-wholesome life Tommy Sheridan (then an MSP) was leading; a case which only gets more extraordinary the more you hear about it.
Reeling out 17 witnesses, Sheridan initially won damages from the News of the World over claims that he was visiting an illicit club; five years on and he’s serving jail time for perjury, though one suspects we haven’t heard the last of it yet.
However, the “public interest” argument is also a pretty flimsy and arbitrary compromise which represents the only middle ground between the two. It’s frequently sullied by the press stretching the definition of public interest to, say, knowing that a premier league footballer had relations with someone they shouldn’t have.
It’s also quickly worth mentioning the increasingly prominent trend for “Libel Tourism”, wherein cases can be brought about in territories which have no bearing on the original comments or participants. This, as you may have guessed, is because the internet is ubiquitous and as such as long as you can prove that a comment made in America has been seen in the UK, then proceedings can be pressed in UK Courts – as seen with King vs. Lewis in 2004. Article 8 makes it easier to win damages in defamation cases (and to win super injunctions) in the UK than it does in the US, meaning that this is a trend which isn’t going anywhere.
This has interesting implications for PRs and the use of social media, as it’s increasingly becoming vital to ensure that social media policies are rigid and right, and to ensure that you watch what you say on social networks – either by yourself or on behalf of a client.
Article 8 is currently winning over Article 10 in the UK, so while you’re free to express yourself, you basically can’t express yourself too much. Or something like that. Even if only one person sees a defamatory comment it could be prosecuted.
It’s also worth remembering that Clients taking legal action in order to protect their reputation isn’t always A Great Thing. In fact, it’s pretty much very rare to see any real benefit. See McLibel, which ultimately had a damaging effect on McDonald’s brand. Looking at the reasons that McDonalds originally took action it could be argued that the head honchos at Google would be within their rights to consider similar action against Facebook and BM, yet I believe they are intelligent and perceptive enough not to.
The interpretation of these two articles sits at the heart of one of the key debates around the media at the moment; it’s important that as PR practitioners we fully understand what they stand for.