V. Holmes (2000) a newspaper was permitted to publish a report on the

child-care policies of a local authority which the authority claimed to

be confidential although the balance would probably fall against

publication if the interests of an individual child were at stake.

US law and probably the ECHR, is less sympathetic to artistic

expression. The Supreme Court has denied that pornography was

protected at all, being in the view of the court without redeeming social

benefit (Roth v. US (1957)). This instrumental approach which makes

freedom conditional contrasts with the liberal stance that the harm of

pornography must be set against freedom as an end in itself as well as

the literary or artistic merit that some pornography may possess.

‘Commercial speech’ is likely to enjoy the least protection of all

although interference must still be justified (see R.J.R.-MacDonald Inc.

v. Canada (A-G) (1995): tobacco advertising).

Freedom of expression includes a right not to say anything. The law

does not normally require anyone to provide information. How-

ever, the ECHR has held that that the public have a right to receive

464 General Principles of Constitutional and Administrative Law

information, ideas and opinions, so that the state has a correspond-

ing duty to safeguard the free-flow even of undesirable information and

opinion. Thus in Plattform ‘Arzte fur das Leben’ v. Austria (1988), it was

held that the state should take positive measures to protect freedom of

expression, by policing arrangements at public meetings. However, this

was under Art. 13 (duty to provide adequate remedies), which is not

incorporated by the Human Rights Act (see also Farrakhan v. Secre-

tary of State for the Home Department (2001)). Sometimes freedom of

expression is protected by statute. For example, universities have a

positive obligation to ‘take such steps as are reasonably practicable to

secure that freedom of speech within the law is secured for members,

students and employees of the establishment and for visiting speakers’

(Education (No. 2) Act 1986 s. 43).

Government claims to confidentiality or demands for information

from the press are closely scrutinised although this has not always been

the case (below, 22.4.2). In R. v. Central Criminal Court ex parte Bright,

Alton and Rushbridger (2001) the Court of Appeal quashed a produc-

tion order sought by the Crown against the editors of the Guardian and

the Observer to disclose information received from Derek Shaylor, a

former MI5 agent, whom the government were seeking to prosecute

under the Official Secrets Act. It was held that disclosure would inhibit

press freedom without there being a compelling reason for the disclo-

sure. The Contempt of Court Act 1981 s. 10 gives some protection to

journalistic sources (below).

The protection of free expression against state intrusion has its

dangers. Some argue that these dangers have been realised in the USA,

where considerable reverence is attached to the First Amendment of the

Constitution as a protection against the state (e.g. Brandenburg v. Ohio

(1969)). It has been suggested that this gives free reign to oppression by

powerful private interests and facilitates indirect censorship through

social and economic forces generated for example by commercial,

ethnic and religious interests which are intolerant of dissenting opin-

ions. According to this view American society is polarised between a

deeply conformist majority and marginalized dissenters and the protec-

tion of minorities might be improved through greater state interven-

tion (see Abel, 1994a, b; Fish, 1994; cf. Paton, 1995).

19.3 ‘Prior Restraint’ and Censorship

Blackstone promoted the distinction in the eighteenth century between

censorship of speech in advance by requiring government approval,

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Freedom of Political Expression

and punishing the speaker after the event. Prior restraint is regarded as

violation of freedom of expression because it removes from the public

sphere the possibility of assessing the matter whereas punishment may

be regarded as a legitimate compromise between competing goods.

Prior restraint should therefore be resorted to only as a last resort. The

ECHR subjects prior restraint to a high level of scrutiny, particularly

in the case of news ‘which is a perishable commodity’ (see Observer and

Guardian Newspapers v. UK (1992)). Indeed in Open Door v. Ireland

and Dublin Well Woman (1992), five judges thought that prior restraint

should never be tolerated.

Since the abolition in 1695 of state licensing of printing presses,

English law has no general censorship powers over the printed word

although in characteristically British fashion there are voluntary mech-

anisms presided over by committees of insiders for the purpose of

encouraging self-censorship (the ‘D’ Notice Committee) and remedying

intrusive practices (the Press Complaints Commission). There is,

however, state censorship over advertising, broadcasting and the

cinema (Broadcasting Act 1990; Wireless Telegraphy Act 1949 – BBC

licence agreement; Cinemas Act 1985 – local authority licensing). The

police have wide prior restraint powers in the interests of public order

(below). The Local Government Act 1988 s. 28 forbids local authorities

from publishing material with the intention of promoting homosexu-

ality and from promoting ‘the teaching in any maintained school of the

acceptability of sexuality as a pretended family relationship’.

19.3.1 Press freedom

The European Court has said that the press have not only a right but an

obligation to impart information and ideas on matters of public

interest, and the public have a right to receive such material. The press

therefore enjoy a high level of protection under the ECHR (see Castells

v. Spain (1992) para. 43; Lingens v. Austria (1986) para. 41; Goodwin v.

UK (1996)). Jersild v. Denmark (1994) concerned a television inter-

view with representatives of an extremist political group. The interview

was edited to highlight abusive remarks made about ethnic groups

within Denmark. The TV interviewer, who did not challenge the racist

remarks, was charged with aiding and abetting the offence of ‘threat-

ening, insulting or degrading a group of persons on account of their

race, colour, national or ethnic origin or belief ’. The court held, with

seven dissenters, that the interview was protected by Art. 10 because of

the duty of the press to report controversial opinions in its role of

public watchdog, and the corresponding right of the public to be

466 General Principles of Constitutional and Administrative Law

informed. It was not for the court to decide how journalists presented

their material provided that, taken in its whole context, the broadcast

did not support the views put forward. In these circumstances restrict-

ing the press was not necessary in a democratic society as required by

Art. 10. However, in Purcell (1991), and Brind (1991) the Commission

held that the UK and Irish governments’ ban on live interviews with

IRA supporters and other groups were lawful. These cases might be

distinguished from Jersild in that they concerned terrorism, which is

an area where the state enjoys a wide margin of appreciation.

The courts have prior restraint powers in the form of an injunction,

disobedience to which attracts imprisonment for contempt of court.

The Attorney-General can seek an injunction in the name of the public

interest, most notably in the case of publications that risk prejudicing

legal proceedings such as newspaper comments on matters related to

pending litigation (contempt of court) and in the interests of national

security (breach of confidence or under official secrets legislation;

below, Chapter 18). A temporary injunction can readily be granted on

the basis of an arguable case since once material is published there is

no turning back (see A-G v. Guardian Newspapers Ltd (1987)). The

effect of a temporary injunction is drastic in that it prevents anyone,

whether a party or not, who is aware that the injunction is in force

from publishing the material (see A-G v. Observer Ltd (1988); A-G v.

Times Newspapers Ltd (1991)). However, under the ECHR once the

material becomes public, even if unlawfully, the press has a duty to

disseminate it, and to comment on, and further restraint cannot be

justified (see Observer and Guardian Newspapers v. UK (1991)).

UK law has also fallen foul of the European Convention on Human

Rights because the power to grant an injunction has been used in a

manner disproportionate to the risk of harm. In A-G v. Times

Newspapers Ltd (1974) the House of Lords held that it was a contempt

for a newspaper to comment on the merits of civil litigation concerning

the victims of thalidomide, for the reason that ‘trial by newspaper’ was

undesirable in itself, irrespective of the possibility that the publication

might influence the outcome of the trial. However, in Sunday Times v.

UK (1979) the ECHR held that contempt law could inhibit freedom of

expression only where this was necessary to ensure a fair trial, for

example if there was a risk of a jury being influenced.

The Contempt of Court Act 1981 was a response to this. Section 2

introduces a test for strict liability contempt of ’substantial risk’ that the

course of justice could be seriously impeded or prejudiced. This applies

while the proceedings are ‘live’. In A-G v. English (1983) the House of

Lords weakened s. 2 by holding that ’substantial’ merely means genuine

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Freedom of Political Expression

or not remote. This is unlikely to satisfy the proportionality doctrine of

the ECHR (but see A-G v. News Group Newspapers (1987); Re Lonrho

(1990); no substantial risk). There is also a common law offence of

contempt of court. This requires an intention to influence court pro-

ceedings and can apply even before the proceedings have started, indeed

even perhaps where it is not certain that they will take place (see A-G v.

News Group Newspapers (1988), doubted in A-G v. Sport Newspapers

Ltd (1992)).

The importance of freedom of expression in relation to the press is

now reinforced by s. 12 of the Human Rights Act 1998. Section 12 pro-

vides firstly that a court order limiting the ‘Convention right of free-

dom of expression’ cannot normally be granted in the absence of the

respondent. This affects interim injunctions which might be sought

as an emergency measure against the media. Secondly s. 12 prevents an

interim order being made unless the applicant is likely to establish that

publication should not be allowed. Thirdly s. 12 requires the court to

have particular regard to freedom of expression and, ‘where the pro-

ceedings relate to material which the respondent claims or which

appears to the court to be journalistic, literary or artistic material

(or to conduct connected with such material), to (a) the extent to which

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be

published;

and (b) any relevant privacy code’ (e.g. that made by the Press

Complaints Commission).