Media Law: 5 Human rights & English law Flashcards Preview

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Flashcards in Media Law: 5 Human rights & English law Deck (22):

EU and UK human rights legislation

- European Convention on Human Rights (1950)
- Human Rights Act 1998


full name ECHR

- European Convention for the Protection of Human Rights and Fundamental Freedoms


which court EU, which court not?

- NOT: European Court of Human Rights
- EU: European Court of Justice


number of countries signed up to ECHR

- 45


effects of HRA 1998

- breaches of convention can be dealt with in UK courts
- interpretation of legislation should be along lines of ECHR
- public bodies must adhere to ECHR
- precedents set in ECtJ increasingly affect UK legislation
- new legislation has to be compatible


what happens if statute found not to comply with ECHR?

- courts cannot refuse to apply incompatible statute
- courts can make declaration of conflict
- government CAN fast-track a statute change


how is new legislation shown to be compatible with ECHR?

- relevant minister makes a statement


original basic rights

Art 2: right to life
Art 3: freedom from torture, inhuman or degrading treatment
Art 4: freedom from slavery and forced labour
Art 5: right to liberty and security of the person
Art 6: right to a fair trial
Art 7: freedom from unlawful punishment
Art 8: right to respect for private and family life
Art 9: freedom of thought, conscience and religion
Art 10: freedom of expression
Art 11: freedom of assembly and association
Art 12: right to marry and found a family


rights added by First Protocol (1952)

Art 1: right to peaceful enjoyment of possessions
Art 2: right to education
Art 3: right to free elections by secret ballot


DEF: allow most rights to be suspended in important circumstances

- derogations


private life restrictions

- 'necessary in a democratic society in the interests of:
- national security,
- public safety
- or the economic well-being of the country,
- for the prevention of disorder or crime,
- for the protection of health or morals,
- or for the protection of the rights and freedoms of others'
- restrictions only allowed when 'pressing social need' for it


courts refer to considering conflicting rights as...

- a balancing act


DEF: restriction must go no further than is necessary

- proportionality


example of proportionality

- court bans publication to ensure a fair trial, but press claims a postponement rather than a full ban is proportional


Art 10: freedom of expression

- hold opinions, receive and impart information and ideas
- without interference by public authority
- regardless of frontiers
- does NOT restrict states from licensing media outlets


cases in which freedom of expression was considered

- 2000: Home Sec wanted to ban publication of security forces role in N Ireland (overturned)
- child removed from foster parents due to local council's race policy
- identities of Venables and Thompson (Bulger killers)


legislation protecting freedom of expression against injunctions

- section 12 of HRA


considerations when deciding whether to apply an injunction

- how far information has been (or is about to be) available to public
- public interest
- provisions of any relevant privacy codes (e.g. Editors' Code of Practice, PCC or Ofcom)


Section 12(2)

- media representation
- media have a right to know application being made and to defend their case
- previously injunctions could be slapped on very late without publication knowing about application


law around injunctions preventing publication

- 'rule against prior restraint' (very old law prohibiting censorship before publication)
- English law prefers dealing with censorship afterwards (e.g. defamation cases, etc.)
- injunction pre-publication only allowed if party likely to stand it up in court


CASE: only injunction if party likely to win case

- Cream Holdings Ltd v Banerjee [2004]


where does section 12 not apply?

- criminal proceedings