With the exponential rise of electronic communications, digital harm, and the ever-growing spotlight on free speech issues, legislative change in this space has been a recent priority for the government.
Two recently introduced Bills in particular have the potential to have tangible ramifications in the media, reputation and privacy space – namely, the Bill of Rights and the Online Safety Bill.
I shall be discussing these two bills - the scope of the proposed provisions, the current status of the Bills, and the ramifications for those concerned about the flow-on effects for reputation and privacy issues - in a two-part series of blog posts, the first being the Bill of Rights.
On 14 December 2021, the government published the consultation paper Human Rights Act Reform: A Modern Bill of Rights. The consultation response was published in June 2022, and the government introduced the Bill of Rights to Parliament on 22 June 2022. The Bill is currently in its Second Reading phase in the House of Commons.
The Bill of Rights is intended to reform the law relating to human rights by repealing and replacing the Human Rights Act. The Bill will also confirm the primacy of UK law. Notably, the Bill clarifies that there is no requirement for UK courts to follow Strasbourg case law.
The government’s stated aim is to clarify and re-balance the relationship between courts in the UK, the European Court of Human Rights and Parliament by ensuring that (1) the Supreme Court determines the meaning and effect of Convention rights for the purposes of domestic law – not the ECtHR, (2) courts are no longer required to read and give effect to legislation, so far as possible, in a way which is compatible with Convention rights, and (3) courts must give the greatest possible weight to the principle that Parliament makes decisions about how to balance rights and freedoms.
The Bill of Rights deals with a whole range of issues, from deportation to the role of jury trials. One of the principal aims of the Bill is to reinforce freedom of speech. Notably, the Bill seems to shift the balance between the right to freedom of expression and the right to privacy in favour of freedom of expression.
Clause 4 of the Bill of Rights provides that a court must give “great weight to the importance” of protecting the right to freedom of speech – that is, the right to impart ideas, opinions or information by means of speech, writing or images.
Further, the Bill will promote the freedom of the press and freedom of speech by including a specific provision to enhance the protection of journalists’ sources. The provision introduces a more stringent test for courts to consider before they can order the disclosure of a journalists’ source. Specifically, the provision states that there must be “exceptional and compelling reasons why it in the public interest for the disclosure to be made”. In making that determination, the provision states that the court must give “great weight to the public interest that exists in protecting journalistic sources” (Clause 21).
Clause 22 of the Bill of Rights also addresses the court’s power to grant relief that affects freedom of expression. Notably, the Bill emphasises that no relief is to be granted to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. Commentary on the Bill suggests that this provision will limit pre-publication interference with the media through injunctions and other relief.
The consultation paper recognises that, although the proposals will give greater weight to freedom of speech, that right remains qualified, and can be restricted in certain circumstances – where it is reasonable and appropriate. Interestingly, the consultation paper refers to matters of national security interests as potentially limiting the right to free speech, rather than an individual’s right to privacy.
It remains to be seen how courts in the UK will interpret the Bill, assuming it is passed in its current form, particularly given the courts will be specifically instructed to disregard Strasbourg case law. What appears clear, however, is the message given to courts to prioritise freedom of expression.
It is difficult to know how far-reaching the consequences of the Bill of Rights might be, and the extent to which (if at all) the Bill might erode the protection of the right to privacy. The Bill of Rights could certainly have potentially huge consequences for those seeking to defend their reputations, including by potentially limiting the right of individuals to seek an injunction pre-publication, by raising the bar when seeking the disclosure of a journalists’ source, or by tipping the scales in favour of free speech, potentially at the expense of individuals’ privacy.