APPENDICES
"… in a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance".
¶2.26 Dissenting judgments in the case expressed the view that the decision of the majority had
undermined freedom of expression and that the chilling effect of sanctions against press freedom had materialised through the decision of the Court.38
¶2.27 In short, the current case law underlines the importance of considering the conduct of
journalists and their compliance with the ethics of journalism in assessing whether any interference with freedom of expression is justified.
¶Section 12 of the Human Rights Act 1998 2.28 Section 12 of the Human Rights Act 1998 (HRA) is predominantly a procedural provision
dealing with the circumstances where the High Court is considering whether to grant any relief, typically an injunction restraining publication, which might bear on the right of freedom of expression in Article 10.
¶2.29 Section 12, as enacted, was introduced into the Bill by the Government during the committee
stage in the House of Commons as a result of support for such a clause being expressed by Lord Wakeham, Chairman of the Press Complaints Commission, and a number of newspaper groups, due to concern that the proposed legislation might otherwise impede freedom of expression by protecting privacy and imposing prior restraint on newspapers. During the second reading debate in the House of Commons, the Home Secretary, Jack Straw MP, announced that an amendment would be introduced into the Bill to protect press freedom in a manner which was consistent with the Convention.39
¶2.30 The purpose of section 12 was analysed by Lord Nicholls in Cream Holdings Limited v Banerjee
in the following terms:40 "When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a "serious question to be tried" or a "real prospect" of success at the trial."
¶2.31 Section 12 applies where the court is considering whether to grant any relief which, if granted,
1851might affect the exercise of the Convention right to freedom of expression.41 This section provides that no such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.42
¶Appendix 4 | Legal Materials
¶2.32 The meaning of "likely" was analysed by Cream Holdings Limited v Banerjee (supra) by Lord
Nicholls who concluded that the effect of s12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case.43 As to what degree of likelihood makes the prospects of success sufficiently favourable, Lord Nicholls explained that:44
"the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ("more likely than not") succeed at the trial … but there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal".
¶2.33 The significance of s12(3) is that this sets a higher bar than the general law in relation to
granting an interim injunction. The courts have clarified that there is no conflict between s12(3) and the Convention because s12(3) does not seek to give a priority to one Convention right over another. It is simply dealing with the interlocutory stage of proceedings and with how the court is to approach matters at that stage in advance of any ultimate balance being struck between rights which may be in conflict.45
¶2.34 Section 12(4) provides that the court must have particular regard to the importance of the
Convention right to freedom of expression and, in particular where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material the court must have regard to the extent to which the material has, or is about to become available to the public, or it is, or would be, in the public interest for the material to be published and any relevant privacy code.
¶2.35 The courts have rejected the argument that s12(4) has the effect that extra weight should be
given to freedom of expression. In Ashdown v Telegraph Group Ltd, Lord Phillips MR rejected the argument that "must have particular regard to" means that the Court should place extra weight on the matters specified, noting that s12 does no more than underline the need to have regard to contexts in which the ECtHR has given particular weight to freedom of expression, while at the same time drawing attention to considerations which may none the less justify restricting that right.46 Section 12(4) does not require the court to treat freedom of speech as paramount.47
¶2.36 Section 12(4)(b) requires that the Court pay particular regard to any relevant privacy code
1852when considering proceedings which relate to journalistic material. Therefore, if a newspaper has breached one of the provisions of the PCC Code, this is a factor which the Court can take