THE LAW REFORM COMMISSION
SUB-COMMITTEE ON PRIVACY
THE REGULATION OF MEDIA INTRUSION
This consultation paper can be found on the Internet at: <http://www.info.gov.hk> during the consultation period.
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Mr Godfrey K F Kan, Senior Government Counsel, was principally responsible for the writing of this consultation paper. |
This Consultation Paper has been prepared by the Privacy sub-committee of the Law Reform Commission. It does not represent the final views of either the sub-committee or the Law Reform Commission, and is circulated for comment and criticism only.
The sub-committee would be grateful for comments on this Consultation Paper by 30th November 1999. All correspondence should be addressed to:
The Secretary
The Privacy sub-committee
The Law Reform Commission
20th Floor, Harcourt House
39 Gloucester Road
Wanchai
Hong Kong
Telephone: (852) 2528 0472
Fax: (852) 2865 2902
E-mail: reform@doj.gcn.gov.hk
It may be helpful for the Commission and the sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential.
Anyone who responds to this Consultation Paper will be acknowledged by name in the subsequent report. If an acknowledgement is not desired, please indicate so in your response.
THE LAW REFORM COMMISSION
OF HONG KONG
SUB-COMMITTEE ON PRIVACY
CONSULTATION PAPER ON
THE REGULATION OF MEDIA INTRUSION
CONTENTS
Chapter Page
Preface 1
Background 1
Social responsibility of the news media 2
Structure of this consultation paper 6
1. The right to privacy and freedom of expression 7
Freedom of expression 7
Basic Law of the Hong Kong SAR 7
International Covenant on Civil and Political Rights 8
First Amendment to the American Constitution 12
Reconciling privacy with freedom of speech 14
Ascertainment and publication of truth 15
Individual self-development and fulfilment 16
Participation in a democracy 17
Safety valve function 18
Freedom of the press 18
General 18
Basic Law of the HKSAR 20
Application of general laws to the news media 21
Freedom to seek, impart and receive information 24
2. Media intrusion in Hong Kong 27
Victims of crime and tragedy 28
Persons in grief or distress 33
Recording in hospitals 37
Surviving victims and relatives 40
Funerals 43
Identity of parties and witnesses in court proceedings 44
Past criminal records 47
Juveniles in court proceedings 48
Media scrums 51
Harassment and following 51
Doorstepping 53
Gathering information by clandestine methods 55
Surreptitious recording in public places 56
Extra-territorial surveillance 57
Use of deceptive means to gather information 57
Surreptitious recording in private premises 60
Recording of oral or telephone conversations with the
consent of one party 61
Interception of telephone conversations 61
Public figures and their family members 62
Children 65
Accuracy 68
Dramatised reconstruction 69
Surreptitious recording for entertainment purposes 70
Other cases 70
Conclusion 70
3. Press self-regulation in other jurisdictions 72
Australia 72
Canada 74
The Atlantic Provinces 74
British Columbia 74
Manitoba 74
Ontario 75
Germany 75
New Zealand 76
Peru 76
Sweden 77
Taiwan 78
United Kingdom 79
Press Complaints Commission 79
Broadcasting Standards Commission 85
United States 86
4. Media self-regulation in Hong Kong 88
Introduction 88
Professional associations 88
News Council 93
Self-restraint by individual news organisations 95
News ombudsman / Readers’ representative 96
Conclusion 98
5. Regulation under the Personal Data (Privacy) Ordinance 101
Personal Data (Privacy) Ordinance 101
Code of practice under the Personal Data (Privacy) Ordinance 102
Need for further measures to regulate media intrusion 103
Data Protection Principle 1 104
Data Protection Principle 3 105
Exemptions for the news media under section 61(1) 107
Privacy torts proposed in the Civil Liability Paper 108
Conclusion 110
6. Regulation under the Broadcasting Authority Ordinance 111
7. Further measures to regulate press intrusion 116
Code of ethics for the news media 116
Press code on privacy matters 117
Independent body to regulate press intrusion 119
Pros and cons of establishing a mechanism by law
to regulate press intrusion 122
Independent body created by law to regulate press intrusion 130
Proposals and precedents in other jurisdictions 130
Press ombudsman 130
Press Complaints Tribunal 131
Press Council 133
Structure of the Press Council for the Protection of Privacy
to be created by law 135
Guiding principles 135
Jurisdiction 136
Appointments Commission 139
Members of the PCPP 141
Mode of appointment 141
Proportion of press members and public members 141
Press Members 142
Public Members 144
Eligibility for appointment as a member of the PCPP 145
Term of office 146
Remuneration 146
Removal from office 146
Temporary appointment 146
Meetings 147
Declaration of interest 147
Code of conduct on privacy-related matters 148
Complaints procedure 148
Waiver of legal rights 152
Powers of the PCPP 153
Compensation 154
Financial penalty 154
Enforcement of adjudications 157
Right of appeal 158
Education 159
Reports 160
Indemnity 160
Funding 161
Administrative support 162
Conclusion 163
9. Summary of recommendations 164
Annex 1 - Code of Ethics of the Hong Kong Journalists Association 172
Annex 2 - Taiwan’s Code of Ethics for the Press 173
Annex 3 - Code of Practice ratified by the Press Complaints 175
Commission in the UK
Preface
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Background
1. On 11 October 1989, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of “privacy”. The Commission’s terms of reference are as follows:
“To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters:
(a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations;
(b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong;
(c) intrusion (by electronic or other means) into private premises; and
(d) the interception of communications, whether oral or recorded;
but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence.”
2. The Law Reform Commission appointed a sub-committee to examine the current state of law and to make recommendations. The members of the sub-committee are:
The Hon Mr Justice Vice-President
Mortimer, GBS (Chairman) Court of Appeal
Dr John Bacon-Shone Director, Social Sciences Research Centre
The University of Hong Kong
Mr Don Brech Principal Consultant
Records Management International Limited
Mrs Patricia Chu, JP Deputy Director of Social Welfare (Services)
Social Welfare Department
Mr A F M Conway Chairman
Great River Corporation Limited
Mr Edwin Lau Assistant General Manager Head of Personal Banking
The Hongkong and Shanghai Banking Corporation Limited
Mr James O’Neil Deputy Solicitor General (Constitutional)
Department of Justice
Mr Peter So Lai-yin Former General Manager
Hong Kong Note Printing Limited
Prof Raymond Wacks Professor of Law and Legal Theory
The University of Hong Kong
Mr Wong Kwok-wah Chinese Language Editor
Asia 2000 Limited
3. The secretary to the sub-committee is Mr Godfrey K F Kan, Senior Government Counsel.
4. The sub-committee has examined the law in relation to the following subjects: (a) the protection of personal data; (b) surveillance; (c) the interception of communications; (d) stalking; and (e) civil liability for invasion of privacy. The purpose of this consultation paper is to examine whether legislative or other measures are needed to provide protection against undue interference with the privacy of individuals by the news media in addition to those proposed in the consultation papers on Stalking, Civil Liability for Invasion of Privacy, Surveillance and the Interception of Communications. We examine the problem of media intrusion because the media are most likely, by the nature of their activities, to infringe on individuals' privacy.
Social Responsibility of the news Media
5. The concept of media social responsibility was first given prominence through the work of the Hutchins Commission on Freedom of the Press in the United States.1 The World Association of Press Councils recognises that the free press must be accountable to the public, though not to government. It declares that “it is implicit and inherent in the institution of a free press that the press exercise its powers and duties in a responsible manner”.2
6. In a comprehensive survey of Hong Kong journalists conducted in 1990,3 the overwhelming majority of journalists responded that the following values were important to the profession: report objectively (95%); inform public promptly (95%); analyse and interpret complex issue (92%); be a watchdog of government (88%); and speak for the public (80%). About 65% of the journalists considered it important “to educate the public” and “to raise the cultural level of the masses”. Only about a third thought it important for news organisations “to meet the popular taste” and “to provide entertainment”. The “social significance of event” was the most important factor affecting journalists’ news judgment.
7. However, some media organisations have given priority to their economic needs. A public opinion survey conducted by the HKU Social Sciences Research Centre in March 1999 found that as many as 41% of the respondents considered that the news media were “irresponsible” in their reporting, up from 24% in September 1997; and that only 17% of the respondents considered that the news media were “responsible”, down from 41% in September 1997.4 Another survey conducted by the Department of Journalism and Communication at the Chinese University reveals that the problems associated with newspapers are ethical rather than political in nature, and that market competition is the reason which leads to the lack of media ethics.5 The survey has also registered a decline in the credibility of all newspapers in Hong Kong.
8. All Hong Kong media organisations, other than Radio Television Hong Kong, which is a government department, are businesses running for profit. They face competition which was unknown in the past. New agencies, such as subscription television, satellite television, video-on-demand programme services and the various services offered on the Internet, are taking business away from local publishers and broadcasters. In the face of keen competition, the overriding concern of media proprietors will always be to maintain or increase market share. Commercial pressure may therefore prevail over professional and ethical standards. Some sections of the news media find it difficult not to use material which other organisations may wish to include in their newspapers or programmes. The fear that a competitor gets a scoop the next day put some editors and journalists under great pressure to intrude into the private lives of individuals even though no vital public interest is at stake. In order to halt the decrease in the size of readers or to increase circulation, some sections of the press provide more coverage for sensational stories about people’s private lives. The reason being the more personal the information, the more readers a newspaper will attract. But sensationalism poses a threat to media ethics, especially in the means by which material is obtained and the manner in which a story is presented.
9. The domination of the press by Apple Daily and Oriental Daily News has also been a growing concern. Before The Sun started publication in March 1999, Apple Daily and Oriental Daily News accounted for about 70% of total newspaper readership.6 The lapse in ethical standards in one of the mainstream newspapers will not only undermine the credibility of that newspaper, but also the credibility of the entire news media. The notion of social responsibility is therefore particularly relevant to the press operating in such an environment. As observed by Joseph Pulitzer:7
“Nothing less than the highest ideals, the most scrupulous anxiety to do right, the most accurate knowledge of the problems it has to meet, and a sincere sense of moral responsibility will save journalism from a subservience to business interests, seeking selfish ends, antagonistic to public welfare.”
10. An editorial of the Hong Kong Standard suggests that the public should be vigilant over media intrusion:
“Unfortunately for those who fall victim to such media harassment the line between the public’s right to know and the individual’s right to privacy can sometimes be hard to define. More often than not it falls to a handful of media people to draw this line. Just as often their decisions are dictated by the market. And, especially in a place like Hong Kong, the market is all that matters. Those who argue that this is neither fair nor moral may have a point. But unless the community speaks out, the market is what matters.”8
11. The Statement of Principles adopted by the American Society of Newspaper Editors provides, inter alia, that:9
“The First Amendment, protecting freedom of expression from abridgement by any law, guarantees to the people through their press a constitutional right, and thereby places on newspaper people a particular responsibility. … The primary purpose of gathering and distributing news and opinion is to serve the general welfare by informing the people and enabling them to make judgments on the issues of the time. Newspapermen and women who abuse the power of their professional role for selfish motives or unworthy purposes are faithless to that public trust.”
12. The MacBride Final Report commissioned by the United Nations Educational, Scientific and Cultural Organisation stated that:
“[t]he concept of freedom with responsibility necessarily includes a concern for professional ethics ... . Such values as truthfulness, accuracy and respect for human rights are not universally applied at present. Higher professional standards and responsibility cannot be imposed by decree nor do they depend solely on the goodwill of individual journalists, who are employed by institutions which can improve or handicap their professional performance. ... As in other professions, journalists and media organisations serve the public directly and the public, in turn, is entitled to hold them accountable for their actions. Among the mechanisms devised up to now in various countries for assuring accountability, the Commission sees merit in press or media councils, the institution of the press ombudsman and peer group criticism of the sort practised by journalism reviews in several countries. ... Codes of professional ethics exist in all parts of the world, adopted voluntarily in many countries by professional groups. The adoption of codes of ethics at national and, in some cases, at the regional level is desirable, provided that such codes are prepared and adopted by the profession itself - without governmental interference.”10
13. We believe that the following views of Mr Tung Chee Hwa, the Chief Executive of the Hong Kong SAR, have the support of the general public: 11
“The print and electronic media should not allow themselves to be driven all the way by the markets. They should not take no notice of the impact they would make on the community for the sake of good circulation and profit making. The press and other forms of media are some sort of public instruments, which work influence on the public and should therefore take up their social responsibility as well. The principle of truthfulness and impartiality should be upheld in news reporting. The practice of the media should be monitored by the public.”
14. We maintain that social responsibility can coexist with press freedom and autonomy for news organisations. Freedom and responsibility are not mutually exclusive.
Structure of this consultation paper
15. We shall examine in Chapter 1 the relationship between the right to privacy and freedom of expression. The extent to which media intrusion is a problem in Hong Kong is explored in Chapter 2. Chapter 3 gives an overview of the developments in Australia, Canada, Germany, New Zealand, Peru, Sweden, Taiwan, the United Kingdom and the United States. The role played by the professional bodies in Hong Kong is assessed in Chapter 4. Whether self-regulation is the answer to the problems arising from media intrusion will also be examined in that chapter. The feasibility of employing the existing frameworks under the Personal Data (Privacy) Ordinance and the Broadcasting Authority Ordinance to protect individuals from media intrusion will be discussed in Chapters 5 and 6 respectively. The desirability of creating an independent body by law to regulate press intrusion will be explored in Chapter 7. The composition, functions and powers of such an independent body will be examined in Chapter 8.
16. Unless the context otherwise requires, the term “journalists” in this Consultation Paper includes reporters, press photographers, columnists, news presenters, news executives and editors.
Chapter 1 - The right to privacy and
freedom of expression
__________________________________________________
Freedom of expression
Basic Law of the Hong Kong SAR
1.1 Prior to the handover in July 1997, the rights and freedoms protected by the International Covenant on Civil and Political Rights were entrenched by the Hong Kong Letters Patent.12 Since July 1997, the Basic Law of the Hong Kong SAR has replaced the Letters Patent and the Royal Instructions as the constitution of Hong Kong. Article 39 of the Basic Law provides:
“The provisions of the International Covenant on Civil and Political Rights ... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
The rights and freedom enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”
1.2 The Preamble of the Basic Law states that the Basic Law was enacted “in order to ensure the implementation of the basic policies of the PRC regarding Hong Kong.” These “basic policies” were elaborated by the PRC Government in Annex I to the Sino-British Joint Declaration on the Question of Hong Kong, including the policy that the Hong Kong Government “shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom of the person, of speech, [and] of the press”.13
1.3 Article 27 provides that Hong Kong residents are entitled to enjoy “freedom of speech, of the press and of publications”. This Article merely identifies a particular group of rights and freedoms which the Basic Law guarantees. It does not purport to prevent the enactment of restrictions on those rights. Article 39 permits restrictions on the rights to free speech and freedom of the press guaranteed by Chapter III of the Basic Law, provided that these restrictions are provided by law and are compatible with the international covenants on human rights.14
International Covenant on Civil and Political Rights
1.4 Freedom of expression is one of the basic human rights protected under the International Covenant on Civil and Political Rights (ICCPR). Paragraphs 2 and 3 of Article 19 of the Covenant provide:
“2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) for respect of the rights or reputations of others;
(b) for the protection of national security or of public order (ordre public), or of public health or morals.”
1.5 It is noteworthy that the following proposed sentence was not included in the General Comment of the UN Human Rights Committee on Article 19: “This is a right the effective enjoyment of which is essential to enable individuals to ensure for themselves the enjoyment of other rights protected in the Covenant.”15 It is arguable that the failure to include the sentence indicates that although freedom of expression is important, it is not accorded the pre-eminence given to it under the American constitution.16
1.6 Freedom of expression is capable of violating the rights of others, including privacy. Article 19 of the Covenant states that the exercise of the right to freedom of expression carries with it “special duties and responsibilities”. The reference to “special duties and responsibilities” was adopted in order to offer States Parties an express tool to counter abuse of power by the modern mass media. States which supported these proposals were of the opinion that freedom of expression was a “dangerous instrument” as well as precious heritage. They maintained that, in view of the powerful influence the modern media exerted upon the minds of man and upon national and international affairs, the “duties and responsibilities” in the exercise of the right to freedom of expression should be especially emphasised.17
1.7 The UN Human Rights Committee has not commented on the nature of these duties and responsibilities except that it is “the interplay between the principle of freedom of expression and such limitations and restrictions which determines the actual scope of the individual’s right.”18 But the expression is generally presumed to include the duty to present information and news truthfully, accurately and impartially.19 It has also been suggested that it obligates the speakers not to abuse their power at the expense of others.20 In determining the nature of the “duties and responsibilities”, one has to find out the status of the person in question, the content of the information expressed, and the medium chosen for such expression. It is arguable that a person who chooses to publish in a newspaper, private information about children, victims of crime, or other vulnerable persons, is under a special responsibility not to harm the individual concerned.
1.8 By virtue of the ICCPR, freedom of expression may be subject to such restrictions as are necessary for respect of the rights of others. Manfred Nowak remarks that none of the restrictions on freedom of expression, including censorship, prohibition of dissemination, confiscation, prohibitions regarding speaking at an assembly etc, is absolutely prohibited by Article 19.21 He says each type of interference must be examined on the basis of the limitations in paragraph 3 whether it is permissible in a particular case. The travaux préparatoires reveals that only with respect to prior censorship that an absolute prohibition was intended.22
1.9 A permissible restriction must be “provided by law”, may only be imposed for one of the specified purposes, and must be “necessary” for achieving that purpose. The requirement of necessity implies that the restriction must be proportional in severity and intensity to the purpose being sought. In contrast to other provisions in the Covenant, Article 19(3) lacks a reference to the necessity in a democratic society. It is therefore arguable that the relevant criterion for evaluating the necessity of restrictions is not the principle of democracy but rather whether it was proportional in a particular case.23
1.10 Although the General Comment given by the Human Rights Committee does not comment on the scope of the specified grounds of restriction in paragraph 3, the Committee has held that restrictions might be considered acceptable on the bases that a programme encourages homosexual behaviour, that the audience cannot be controlled, and that harmful effects on minors cannot be excluded.24 Nowak suggests that the “other rights” whose protection might justify restrictions on freedom of expression also include the right of privacy under Article 17:
“Even though the drafters of Art. 19 expressly adopted the right to seek information actively, this does nothing to change the duty on States Parties flowing from Art. 17 to protect the intimacy of the individual against sensational journalism. Above all, the legislature must prevent abusive access to personal data. Furthermore, Art. 14(1) expressly provides the possibility of limiting the access of the public and particularly the media to court proceedings in the interest of the private lives of the parties.
The protection of the rights and reputations of others may be ensured by measures of criminal, civil and/or administrative law. For instance, criminal provisions dealing with defamation, derision or slander are as justified by Art. 19(3) as copyright provisions or compensation claims under civil law by a person whose honour has been violated or privacy otherwise infringed.”25
1.11 As regards the expression “protection of morals” in Article 19, it may imply safeguarding the moral ethos or moral standards of a society as a whole, but may also cover protection of the moral interests and welfare of certain individuals or classes of individuals who are in need of special protection because of lack of maturity, mental disability or state of dependence.26 As far as the protection of individuals is concerned, the expression protects the psychological as well as the physical well-being of individuals and, where a child is involved, it covers a child’s mental stability and freedom from serious psychic disturbance.27
1.12 Even if a restriction cannot be brought within the exceptions in paragraph 3, resort may be had to Article 5(1) of the ICCPR which authorises interference in a narrow range of circumstances. This article ensures that the right to freedom of expression would not be misused by private parties to destroy the rights of others. It provides that:
“Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.”
1.13 The purpose of Article 5(1) is to prevent the abuse of any one of the rights and freedoms declared in the Covenant for the purpose of prejudicing one or more of the others. The rights capable of being misused includes the freedom of expression in Article 19. Hence, the freedom may be denied to a person who incites racial discrimination. For present purposes, there are two aspects to Article 5(1). First, any limitation on exercise of the right to freedom of expression must not be greater than is provided for in the Covenant. Secondly, the exercise of that right cannot aim at the destruction of the right of privacy under Article 17.
European Convention on Human Rights
1.14 Freedom of expression is also protected under Article 10 of the European Convention on Human Rights. The European Court of Human Rights expressed the view that freedom of expression constitutes “one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment,”28 and that it is applicable to information and ideas that “offend, shock or disturb the State or any section of the community”.29
1.15 In enunciating the principles underlining the freedom of expression, the Strasbourg authorities have put a high value on informed discussion of matters of public concern. The European Court has therefore ascribed a hierarchy of value, first to political expression, then to artistic expression and finally to commercial expression.30 Furthermore, the Court is mindful of the fact that journalistic freedom also covers “possible recourse to a degree of exaggeration, or even provocation.”31 Although it must not overstep certain bounds set, inter alia, for the protection of the reputation of others, it is nevertheless incumbent on it “to impart - in a way consistent with its duties and responsibilities - information and ideas on political questions and on other matters of public interest.”32
1.16 Common law recognise that press freedom has to be balanced against other interests. In carrying out this balancing exercise in a particular case, a judge would distinguish what he thinks deserves publication in the public interest and things in which the public are merely interested. Hoffmann LJ points out that a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. In his judgment:33
“Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute. ...
It cannot be emphasised too strongly that outside the established exceptions, or any new ones which Parliament may enact in accordance with its obligations under the [European Convention on Human Rights], there is no question of balancing freedom of speech against other interests. It is a trump card which always wins.” (emphasis added)
1.17 Jurisdictions in Europe which are State Parties to the European Convention on Human Rights treat the rights of privacy and free expression as fundamental human rights having equal status. Both rights are subject to limitations necessary for the protection of the rights of others.34 There is no rights hierarchy under the Convention by reference to which a conflict between privacy and free expression may be resolved. According to this view, the two rights must be balanced. One will not inevitably trump the other.35
1.18 Under the European Convention, the exercise of freedom of expression may be subject to such restrictions as are “necessary” in a democratic society for the protection of the rights of others. The adjective “necessary” has been construed by the European Court of Human Rights as implying the existence of a “pressing social need”. In addition, the interference must be “proportionate to the legitimate aim pursued” and the reasons adduced to justify it must be “relevant and sufficient”.36 The proportionality test implies that the pursuit of the countervailing interests mentioned in Article 10 of the Convention has to be weighed against the value of open discussion of topics of public concern. When striking a fair balance between the countervailing interests and the right to freedom of expression, the court should ensure that members of the public would not be discouraged from voicing their opinions on issues of public concern for fear of criminal or other sanctions.37
1.19 The European Commission of Human Rights agrees that, in general, the restriction of true statements requires the application of a stricter test of necessity than the restriction of false or misleading allegations. However, it recognises that the truth of information cannot be the only criterion for being allowed to publish it. True statements can interfere with legitimate interests which deserve an equal degree of protection as freedom of expression, eg where the sphere of privacy or the honour and reputation of a person is at issue or where legal obligations of confidentiality have been breached.38 The European Court of Human Rights affirms this view, holding that:
“even the publication of items which are true and describe real events may under certain circumstances be prohibited: the obligation to respect the privacy of others or the duty to respect the confidentiality of certain commercial information are examples. In addition, a correct statement can be and often is qualified by additional remarks, by value judgements, by suppositions or even insinuations. It must also be recognised that an isolated incident may deserve closer scrutiny before being made public; otherwise an accurate description of one such incident can give the false impression that the incident is evidence of a general practice.”39
First Amendment to the American Constitution
1.20 Justice Brandeis explained the origins of the First Amendment to the American Constitution, which states in part, “Congress shall make no law ... abridging the freedom of speech, or of the press ...”:
“Those who won our independence ... valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”40
1.21 The US Supreme Court held that the First Amendment supports the view that the press must be left free to publish news without censorship, injunctions or prior restraints:
“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.”41
1.22 However, the First Amendment does not confer an absolute right to publish, without responsibility, whatever one may choose. The authors of American Jurisprudence elaborate:
“The extraordinary protections afforded by the First Amendment’s guarantee of free speech and press carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly, a duty widely acknowledged but not always observed by the press. It does no violence to the value of freedom of speech and press to impose a duty of reasonable care upon those who would exercise such freedoms; the states have a substantial interest in encouraging speakers to carefully seek the truth before they communicate, as well as in compensating persons actually harmed by false descriptions of their personal behavior. … Whenever the constitutional freedoms of speech and associations are asserted against the exercise of valid governmental powers, a reconciliation must be effected, requiring an appropriate weighing and balancing of the respective interests involved.” 42
1.23 Hence, although the language is absolute in its prohibition of limitations on the press, the right of free speech is not absolute at all times and under all circumstances. Freedom of speech does not comprise the right to speak whenever, however, and wherever one pleases, and the manner, place, or time of public discussion can be constitutionally controlled.43
1.24 As Laurence Tribe explains, the US Supreme Court has developed two approaches for resolving First Amendment claims.44 Government regulation which aims at ideas or information, in the sense of singling out actions for government control or penalty because of the specific message or viewpoint such actions express, is presumptively at odds with the First Amendment. On the other hand, if the regulation is not aimed at ideas and information but has the indirect result of restricting speech, the regulation is constitutional as long as it does not unduly restrict the flow of information and ideas. The latter approach requires the “balancing” of competing interests in the sense that the values of freedom of expression and the government’s regulatory interests will be balanced on a case-by-case basis. Hence, the American government is allowed to regulate speech on the ground that the expression falls outside the First Amendment’s purposes or fails to satisfy its premises, as when the message suppressed poses a “clear and present danger” or otherwise falls within one of the categories of expression which are not privileged by the First Amendment, such as: (1) portrayal of minors in sexual roles, (2) infringement of copyright, (3) obscenity, (4) defamatory falsehood, (5) contempt of court, and (6) several categories of atomic, military and intelligence information.
1.25 Likewise, it is well settled that the right of free press may be subject to legislative restriction within proper limits. Although states cannot violate the constitutional guarantee of freedom of the press, the publisher of a newspaper or magazine has no special privilege to invade the rights and liberties of others.45 They are subject to reasonable regulation like other citizens. So long it does not involve suppression or censorship, the regulation of newspapers is as broad as that over other private business.46 The Court has held that the power to regulate the business of newspaper publishers may be exercised in the interest of public health, morals, safety, and welfare.47 Nonetheless, a state may not punish a newspaper for the publication of truthful and lawfully obtained information about a matter of public significance, except when necessary to further a state interest of the highest order.48
Reconciling privacy with freedom of speech
1.26 The extent to which the right to privacy may be reconciled with freedom of speech turns on a number of considerations:49
“Broadly speaking, justifications for free speech are either consequentialist or rights-based. The former normally draw on the arguments of Milton and Mill (from truth or democracy), while the latter conceive of speech as an integral part of an individual’s right to self-fulfilment. When it comes to defending free speech these arguments tend invariably to be amalgamated, and even confused. So, for example, Thomas Emerson discerns four primary justifications which include both sorts of claim: individual self-fulfilment, attainment of the truth, securing the participation by members of society in social, including political, decision-making, and providing the means of maintaining the balance between stability and change in society.
Supporters of ‘privacy’, on the other hand, rely almost exclusively on rights-based arguments. Thus, in his classic exposition, Alan Westin suggests that a right of privacy is essential to protect personal autonomy, allowing us to be free from manipulation or domination by others, to permit emotional release, to afford an opportunity for self-evaluation, and to allow limited and protected communication to share confidences and to set the boundaries of mental disturbance.
Difficulties emerge at once. The extent to which the law may legitimately curtail speech that undermines an individual's ‘privacy’ is often presented as a contest between two heavyweights. But this may be mere shadow-boxing, ... ‘At most points the law of privacy and the law sustaining a free press do not contradict each other. On the contrary, they are mutually supportive, in that both are vital features of the basic system of individual rights.’” 50
1.27 The importance of freedom of speech is especially evident with the extraordinary development of the Internet and the resulting access to information. The so-called “information superhighway” provides hitherto unimagined opportunities both to obtain and to receive information on almost any subject.51 In order to understand the principles underlying freedom of speech, we examine in the following paragraphs, the political and philosophical arguments which might justify its inclusion in the international covenants. According to traditional views, the free speech principle serves four main functions: (a) ascertainment and publication of truth; (b) individual self-development and fulfilment; (c) participation in a democracy; and (d) safety valve function.52
Ascertainment and publication of truth