It is sometimes argued that s. 12 has the effect of privileging freedom

of expression above other Convention rights. However, in Douglas and

Zeta-Jones v. Hello! Ltd (2001), the Court of Appeal held that s. 12 does

not have this effect. According to the Court of Appeal, s. 12 merely

ensures that the competing rights in question are taken into account

even at the interim stage whereas traditionally an injunction has been

granted where there is a serious issue to be tried (see American Cyana-

mid v. Ethicon (1974)).

A ‘fair balance’ has probably been struck in relation to the reporting

of court proceedings. Section 4 of the Contempt of Court Act 1981

empowers the court to postpone but not to prohibit publication ‘where

it appears to be necessary for avoiding a substantial risk of prejudice

to the administration of justice’. In R. v. Beck ex parte Daily Telegraph

(1993) a court had ordered that the reporting of the trial of three

alleged child abusers should be postponed. It was held that the order

468 General Principles of Constitutional and Administrative Law

was invalid because the matter was of serious public concern and the

public fear of a possible cover-up outweighed the interests of justice in

the particular case. The Court of Appeal stressed that gagging orders

must be justified on the basis of a strong necessity. Section 11 of the

Contempt of Court Act 1981 deals with the prohibition of publication

of information given in court proceedings. It assumes but does not

confer such a power by enabling the court (‘having the power to do’)

so to give direction for the purpose. There are also statutory powers

which enable the court to prohibit publication (e.g. Domestic and

Appellate Proceedings (Restriction of Publicity) Act 1968; Magistrates

Courts Act 1980 s. 71). The court can order witnesses to remain anony-

mous but only where publicity is likely to lead to serious harm (see

R. v. Chief Registrar of Friendly Societies ex parte New Cross Building

Society (1984); A-G v. Leveller Magazine Ltd (1979)).

Privacy and respect for family life are protected by Art. 8 of the

ECHR thus clashing directly with freedom of expression without any

apparent means of deciding which to prefer (below Ch. 20). There is a

general principle that the convention is enforceable only in respect of

violations by public bodies, but the ECHR has held that Art. 8 may

impose a positive obligation on the state to ensure that private bodies

such as the press protect privacy (see X and Y v. Netherlands (1985)).

Article 17, which prevents the abuse of convention rights, might also

be used against press intrusion.

19.3.2 Morality

There are substantial censorship powers in relation to pornography.

This area of the law seems to be geared to the moral values of the

majority without the need to show any special interference with

particular rights or interests (see Knuller v. DPP (1973)). The thrust of

the law of obscenity and indecency seems to be to accommodate

pluralism up to the point where it threatens the stability and order of

the community.

Article 10 of the ECHR extends its protection to matters which

‘offend, shock or disturb’ on the ground that ’such are the demands of

that pluralism, tolerance and broadmindedness without which there is

no democratic society’ (Handyside v. UK (1976)). However, under Art.

10 the state is entitled to license ‘broadcasting, television or cinema

enterprises’ and can override freedom of expression for the protection

of ‘morals’ to the extent to which this is ‘necessary in a democratic

society’. The fact that the protection of morals is in itself a legitimate

469

Freedom of Political Expression

object of state concern, has caused differences of opinion within the

European Court. Although there have been strong dissents the court

seems to be less favourably disposed to artistic expression than to

political expression. It has urged the notion of restraint upon artists in

the interests of public feelings and the moral well-being of the com-

munity (see Muller v. Switzerland (1988), Otto Preminger Institut v.

Austria (1994) (below)).

As we have seen, there is a violation of convention rights if the state’s

protective measures are disproportionate to the evil, but the ECHR

gives a margin of appreciation where moral attitudes vary between the

different European states. In Open Door and Dublin Well Woman v.