THE JOURNALIST
If what I have said about the current controversy over Family Courts is a distraction from the theme of press freedom, it illustrates the thrust of this essay which reveals the issue of open justice (not a matter of free speech), as distinct from the meaning and scope of Article 10.
Where then do the investigators and purveyors of information fit into that important aspect of public affairs, freedom of speech? One can do no better for a prime answer than look to the writings of Professor Harry Street. I am citing from the sixth edition of Freedom, the Individual and the Law, because it was the edition in 1989 first edited under the hand of Geoffrey Robertson QC (and therefore has the imprimatur of a leading authority on media law) after Professor Street’s acknowledged work had gone through five editions since the first in 1963. In the chapter on ‘Freedom of Expression’, the occupation of journalists is neatly described in the following unambiguous terms:It is the exercise by occupation of the right to free expression available to every citizen. That right, being available to all, cannot in principle be withdrawn from a few by any system of licensing or professional registration, but it can be restricted and confined by rules of law which apply to all who take or are afforded the opportunity to exercise the right by speaking or writing in public.[226]
The courts have confirmed this view. In the Spycatcher case in 1988, the then Master of the Rolls, Sir John Donaldson, described:
an affirmation that newspapers have a special status and special rights in relation to the disclosure of confidential information, which is not enjoyed by the public as a whole. This is not the case. I yield to no one in my belief that the existence of a free press... is an essential element in maintaining parliamentary democracy and the British way of life as we know it.
But it is important to remember why the press occupies this crucial position. It is not because of any special wisdom, interest or status enjoyed by proprietors, editors or journalists. It is because the media are the eyes and ears of the general public. They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public.[227]In his judgment in the same case, Bingham LJ (as he then was) stated:
It is elementary that our constitution provides no entrenched guarantee of freedom of speech or of the press, and neither the press nor any other medium of public communication enjoys (save for exceptions immaterial for present purposes) any special position or privileges.
What more is there to say than that the journalist by occupation acquires nothing from the law that does not apply to anyone minded to take the opportunity to exercise the right of free speech, with the qualifications that apply likewise to the journalist and the non-jour- nalist citizen. Freedom of speech belongs indiscriminately to all of us, including those working in the media.
Professor Street prefaced his description of the journalist’s occupation by saying that ‘journalism is not just a profession’. In recognising that the right of free speech cannot be withdrawn by any system of licensing or professional registration, he was using the phrase ‘profession’ in the loose sense of a collective of persons engaged in an enterprise of mutual interest. A profession normally implies an occupation or service that can be carried out only so long as the individual qualifies according to imposed ethical standards which can be enforced through a disciplinary system. Any such professional registration would be a negation of the basic right of freedom of expression. No one can be prevented from exercising free speech other than by a law of general applicability - libel, breach of confidence and contempt of court are complex laws that impinge more fiercely on the media, if only because of the practical impact of journalistic activity.
Authors of books, which newspapers and magazines are prone to serialise and regularly review in their columns, may have special reasons for claiming better protection from legal suits, if only because of the book’s specialised audience as opposed to the unknown, ephemeral reader of a newspaper. HW Fowler (the famous author of Modern English Usage) once wrote to his publisher at the Oxford University Press, ‘Habent sua fata libri’ (‘Books have their own destinies’), by which he meant that authors positively invite reviewers and commentators to criticise their work, and even provide a right of reply in kind, but not by way of individual litigation. Publishers of books derive their freedom of expression likewise under Article 10. It appears that the courts are at present treating authors of books, for the purpose of establishing the public interest and qualified privilege for the publication, as engaging in ‘responsible journalism’;[228] they have it since the passing of section 5 (4) of the Defamation Act 2013.It might be claimed that the protection of journalists’ sources of information is indicative of a special immunity. But section 10 of the Contempt of Court Act 1981 is indiscriminate in its cloak of protection: ‘No court may require a person [my italics] to disclose... the source of information contained in a publication for which he is responsible.’ Journalists and other regular purveyors of information may be more vulnerable to proceedings for disclosure, but the law applies without reference to the undisclosed material and the suspected source. As Laws LJ said in Ashworth Hospital Authority vNasse, ‘the public interest in the non-disclosure of press sources is constant, whatever the merits of the particular publication and the particular source.’[229] It is in the public interest, moreover, that the informant seeking anonymity for the journalistic information should be likewise protected - particularly if he or she happens to be a whistle-blower.
A degree of special protection might be claimed by constitutionalists where the Human Rights Act 1998 afforded provision in section 12, but even then it could be seen as little more than a government acceptance of media resistance to any potential privacy law. Section 12(4) provides that a court must pay particular regard to the importance of the constitutional right to freedom of expression, and where the respondent to any proceedings claims ‘journalistic, literary or artistic material’ the court must have regard to the material being, or potentially being, in the public interest. ‘Any relevant privacy code’ is specifically recited in section 12(4)(b). But, as Professor Eric Barendt points out in his Freedom of Speech,[230] while the subsection might appear to give some priority to freedom of expression over competing rights, the courts have rejected that interpretation.[231] It cannot be a privilege or right for journalists themselves rather than the source (or the general public). If that were the case, the journalist could waive the privilege or right.[232] The statutory provision places the position of journalistic (and other forms of written) material within the qualification of Article 10(2) - hardly conferring a constitutional right on journalists per se.[233]