Hong Kong Law Reform Commission

Chapter 3 - Freedom of expression and the right to privacy

• Right of privacy and free speech values
• Freedom of the press
• International Covenant on Civil and Political Rights
• American Convention on Human Rights
• European Convention on Human Rights

3.1 Since privacy is not absolute and has to be balanced against other rights and freedoms, a law protecting an individual's privacy must not unduly violate other legitimate interests. In particular, claims that privacy has been invaded by unwanted publicity have the potential to stifle free speech. Any law protecting individuals from unwanted publicity must resolve this tension satisfactorily. The common interest of Hong Kong is best served by an ample flow of information to the public concerning matters of public interest to the community. To the extent that the press have a duty to impart information on matters of public interest to the community, the press must be protected from any threat of civil liability that would stifle public interest speech. Our object is therefore to protect individuals from invasion of privacy without impinging on the right to freedom of expression.

3.2 We examine in this chapter the functions of the right to freedom of expression and how that right interacts with the right to privacy. It will be seen that while the protection of privacy may impinge on freedom of expression, the exercise or abuse of freedom of expression may infringe the right to privacy. The International Covenant on Civil and Political Rights recognises this conflict. It protects privacy only from "arbitrary or unlawful" interference, while the exercise of the right to freedom of expression carries with it "special duties and responsibilities" and may be subject to legal restrictions permissible under the Covenant.

Right of privacy and free speech values[156]

3.3 The free speech principle serves four main functions: (a) ascertainment and publication of the truth; (b) individual self-development and fulfilment; (c) participation in a democracy; and (d) a safety-valve function.

3.4 Ascertainment and publication of the truth - The basis of this argument is that open discussion with no restraint will lead to the discovery of the truth. However, not all speech is protected by the free speech principle. Even the most liberal democracies ban speech which incites violence, interferes with the administration of justice, or discloses state secrets or confidential commercial information.[157] Likewise, the requirement of decency and the need to protect children require that hard-core pornography should be prohibited. Whereas articles about the private lives of public officials and public figures are protected if they contain information relevant to the public's assessment of their suitability for office or general worth as public figures, articles about the private lives of ordinary individuals are not so protected if the publication cannot be justified on any of the grounds supporting free speech.[158] Although everyone should, in principle, have the liberty to express and publish true facts, this liberty does not extend to truth which causes private individuals annoyance or embarrassment without any corresponding benefit to the public. The publication of private facts which interferes with a person's private realm and is of no legitimate concern to the general public should be restrained even though the facts are true.

3.5 Frederick Schauer argues that it is not always the case that knowing the truth is better than living under a misconception. Even if we are to accept that it is always better to know the truth than to be deceived by a false belief, knowing the truth does not necessarily put one in a better position than one who has no belief at all. The gain in knowledge may simply be an addition rather than the substitution of the true for the false.[159] It does not follow that an increase in knowledge by a person is good in itself, either for that person or for society. Knowledge that an identifiable individual is a gay, an alcoholic or a welfare recipient has no intrinsic value if the individual concerned is merely an ordinary citizen. An increase of knowledge about such private facts might harm the interests of the individuals concerned without any corresponding benefit to society.

3.6 In addition, giving undue emphasis to attainment of truth would render investigative journalism and academic research using human subjects difficult. As observed by Paton-Simpson, many journalists and researchers obtain information from their subjects by guaranteeing their anonymity in the eventual publication or by agreeing that what is said will be "off the record". The truth on social issues and matters of lifestyle and human behaviour will more likely be discovered by protecting privacy than by violating it.[160]

3.7 Individual self-development and fulfilment - Freedom of expression is essential to the realisation of a person's character and potentialities as a human being. Restraining a person from expressing himself would not only inhibit the growth of his personality but would also affront his dignity. It is only through public discussion that individuals could formulate their own beliefs and develop intellectually and spiritually. But as pointed out in Chapter 1, privacy also contributes to the development and maintenance of individuality. Freedom of speech and privacy complement each other in working toward the same goal of individual self-fulfilment.

3.8 Participation in a democracy - The free speech principle may also be viewed as a means by which citizens participate in social and political decision-making. Public discussion and debate of social and political issues assist citizens in understanding such issues and forming their own opinion on matters affecting their lives. This would in turn enable them to check government misconduct and to participate effectively in the operation of a democratic government. Freedom of speech is therefore essential to representative self-government.

3.9 However, free speech is not the only means to facilitate citizen participation in social and political decision-making. One of the basic requirements of democracy is the moral autonomy of citizens. To the extent that privacy fosters and encourages autonomy, privacy is also important to democratic government.[161] Allowing free discussion in private would contribute to a pluralistic society and protect those who question mainstream thoughts and values. Protecting individuals from unwarranted publicity therefore facilitates public discussion and effective participation in a democratic government. The freedom to express ideas and opinions would be undermined if individual privacy is not protected against intrusion.

3.10 Another benefit of privacy protection is that talented individuals can be attracted to serve the community by assuring that they would not be exposed to unwarranted publicity merely because they enter public life.[162] Respect for privacy should be all the stricter at a time when the public demand more transparency in public affairs. An absolute claim to free speech would discourage people from participating in public affairs:

"Because it is probably possible to unearth some embarrassing facts about anyone, many individuals may decide to avoid becoming public figures. Therefore, a pattern of investigation and disclosure may seriously limit the life plans of worthy individuals and cost society its more explorative and inventive potential leaders. The leaders are then likely to be individuals who have never tried anything nonconformist or extraordinary, who never challenged accepted norms, and who never made mistakes."[163]

3.11 Hence, as far as individual self-fulfilment and citizen participation are concerned, the interests in privacy are consistent with those in freedom of speech. Privacy and free speech serve the same values and are complementary to each other:

"In many cases where privacy and free speech conflict at a superficial level, they are at a deeper level merely two different modes of giving effect to the same underlying concerns. It is possible that in at least some of these cases, free speech values will be better served by protection of privacy than by permitting publication."[164]

3.12 Safety-valve function - According to Thomas Emerson,[165] freedom of expression provides a framework in which the conflict necessary to the progress of a society can take place without destroying the society. Open discussion promotes greater cohesion in a society because people are more ready to accept decisions that go against them if they have a part in the decision making process. Conversely, suppression of discussion would make a rational judgment impossible and conceal the real problems confronting a society. Yet privacy also affords a safety-valve function. As observed by Westin, most persons need to give vent to their anger at those who exercise authority over them, and to do this in the privacy of intimate circles, or in private correspondence, without fear of being held responsible for these comments. Without such an avenue of release, most people would experience serious emotional stress.[166]

Freedom of the press

3.13 Article 27 of the Basic Law protects freedom of the press, in addition to freedom of speech and of publication. Press freedom is important because the press is a medium for publishing information and ideas, and journalism is the primary and principal manifestation of freedom of expression. The HK Court of Final Appeal has this to say about freedom of expression:

"Freedom of expression is a fundamental freedom in a democratic society. It lies at the heart of civil society and of Hong Kong's system and way of life. The courts must give a generous interpretation to its constitutional guarantee. This freedom includes the freedom to express ideas which the majority may find disagreeable or offensive and the freedom to criticise governmental institutions and the conduct of public officials."[167]

3.14 The press is singled out for protection in many constitutions because it is particularly vulnerable to Government control. Unless checked by the constitution, the Government can impose restrictions on the press directly or indirectly, such as through the imposition of heavy taxation on publishing companies, requirements for large bonds to start a newspaper, and injunctions against future issues.[168]

3.15 The press can play the role of professional critics by acquiring enough information to pass judgment on the actions of the Government, and disseminating such information and judgments to the general public.[169] As observed by the European Court of Human Rights:

"Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society."[170]

3.16 By and large, the local press has been free to play the role of professional critic. Over the years, local newspapers have been used as a medium to criticise the Qing dynasty, warlords, the Chiang administration, Japanese militarism, colonialism and Communism. Since the Government decided to introduce democracy in the late 1980s, many councillors, political groups and columnists have also criticised the Government through the press.[171] Indeed, a recent study found that 58% of local journalists consider that the most important function of newspapers is to monitor the Government.[172]

3.17 Some may therefore argue that Article 27 of the Basic Law should be construed as creating a fourth institution outside the Government as an additional check on the executive, legislature and judiciary. Under the Basic Law, the Government is accountable to the legislature, and all legislators will ultimately be elected by universal suffrage. In an age of transparency and accountability, the public's right to know extends to matters concerning the workings of the Government and what is being done in their name by their representatives in the legislature. If democracy is to function effectively, it is essential that the public is adequately informed as to the actions of Government officials and members of the legislature.[173]

3.18 Apart from the important role played by the press in scrutinising the activities of the Government, press freedom also serves to protect the public from the improper or wrongful conduct of private individuals who are involved in public affairs, particularly those who are powerful and influential in society. Matters relating to the public life of the community and those who take part in it are plainly matters of public interest. The expression "public life" includes not only activities such as the conduct of Government and political life, elections and public administration, but also matters such as the governance of public bodies, institutions and companies which give rise to a public interest in disclosure.[174] Those who engage in public life must expect that their public conduct will be the subject of scrutiny and criticism. The freedom of the press in exposing unlawful or improper conduct should not be undermined.

3.19 However, the constitutional right of free speech in Article 27 is not absolute.[175] Although freedom of the press is important for democracy and the public, it does not give a special right to media organisations to unjustifiably exploit other people's private lives for commercial gain. It is essential to distinguish between the public's interest in information and the interest of a democratic system in having a free press on the one hand, and the commercial interests of media organisations on the other. When weighing the commercial interests of media organisations against the interest of an individual to enjoy a protected private life, one has to look at what is being put onto the scales of press freedom: forced commercialisation of others or important information for the public.[176]

3.20 We must, however, stress that any interference with the press has to be justified. Such interference inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it must be justified.[177] Lord Nicholls said:

"To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration and the means employed must be proportionate to the end sought to be achieved. ... It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment."[178]

3.21 The need to justify any interference with press freedom has also been stressed by the Supreme Court of South Africa:

"The press played a critical role in the free exchange of ideas, an essential part of freedom of speech. It was the role of the press to ferret out and expose corruption and maladministration, to contribute to the exchange of ideas and to act as watchdog of the governed. … In order for a law to qualify as a reasonable and justifiable limit on a right or freedom it had to be shown that the law pursued a sufficiently important objective, was rationally connected to that objective, impaired the right no more than was necessary to accomplish such objective and did not have a disproportionately severe effect on the person to whom it applied."[179]

3.22 Our Report on Reform of the Law Relating to the Protection of Personal Data published in 1994 approached the relationship between personal data protection and media freedom "starting from a position that free speech is pre-eminent, but that certain exceptions protecting the individual may prove to be necessary."[180] In its submission, the HK section of JUSTICE queried whether the proposals in the Consultation Paper had deviated from this stance. We maintain the view that the correct starting position is that free speech is pre-eminent, particularly when freedom of speech and of the press is now guaranteed by the Basic Law of the Hong Kong SAR. Nonetheless, certain privacy interests are also protected by the Basic Law, including privacy of the person (Article 28), territorial privacy (Article 29) and communications privacy (Article 30). There are no provisions in the Basic Law suggesting that the rights and freedoms in Articles 27, 28, 29 and 30 are in any hierarchical order.

3.23 In addition to the protection of press freedom under Article 27 and the protection of privacy under Articles 28 to 30, the Basic Law also affords protection to these two human rights through Article 19 (freedom of expression) and Article 17 (privacy) of the International Covenant on Civil and Political Rights ("ICCPR"). Article 39 of the Basic Law provides that the provisions of the ICCPR shall be implemented through the laws of Hong Kong, and any restrictions on the rights and freedoms enjoyed by Hong Kong residents must not contravene these provisions. Hence, although restrictions may be imposed on the right to privacy or the right to free speech, they must be provided by law and be compatible with the ICCPR.[181] We examine below how free speech and privacy are reconciled under the Covenant.

International Covenant on Civil and Political Rights

3.24 In addition to the Basic Law, freedom of speech and of the press is protected under the HK Bill of Rights Ordinance (Cap 383) and the ICCPR.[182] Article 19 of the ICCPR provides, inter alia:

"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."

3.25 The exercise of freedom of expression may violate the rights of others, including privacy. Contrary to the position in the US where press responsibility is not mandated by the First Amendment to its Constitution,[183]Article 19 of the ICCPR expressly requires 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 a 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.[184]

3.26 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."[185] But the expression is generally presumed to include the duty to present information and news truthfully, accurately and impartially.[186] It has also been suggested that it obliges speakers not to abuse their power at the expense of others.[187] In determining the nature of the "duties and responsibilities", it is necessary to ascertain 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.

3.27 Pursuant to Article 19(3) of the ICCPR, the exercise of freedom of expression may legitimately be restricted by lawful measures that are "necessary for respect of the rights or reputations of others", including the right to privacy under Article 17, which provides:

"1. No one shall be subjected to arbitrary or unlawful interference with the privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks."

3.28 As regards the protection of "public morals" under Article 19(3), 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.[188] As far as the protection of individuals is concerned, the expression protects the psychological as well as the physical well-being of individuals.[189]

3.29 Having regard to the fundamental role of journalistic freedom of expression, we consider that any interference with the practice of journalism must: (a) be foreseen in the complete and exhaustive list of restrictions set out in Article 19(3) of the ICCPR; (b) be necessary in a democratic society and respond to a pressing social need;[190] (c) be laid down by law and formulated in clear and precise terms; (d) be narrowly interpreted; and (e) be proportional to the aim pursued.[191]

3.30 We acknowledge that the purpose of protecting the right to privacy is not, of itself, a sufficient reason to restrict expression. Any restriction on freedom of expression imposed by any privacy legislation must be necessary to protect the right to privacy. Since the requirement of necessity implies an element of proportionality, the scope of the restriction must be proportional to the value which the restriction serves to protect. It must not exceed that needed to protect that value.[192]

3.31 Also relevant is Article 5(1) of the ICCPR, which aims at preventing 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 abused include the freedom of expression. For present purposes, there are two aspects to Article 5(1). First, any limitation on exercise of the right to free expression or the right to privacy must not be greater than is provided for in the Covenant. Secondly, the exercise of the right to free expression cannot aim at the destruction of the right of privacy under Article 17. Conversely, the protection of the right to privacy cannot aim at the destruction of the right to free expression under Article 19.

3.32 Article 19 of the ICCPR provides that freedom of expression includes "freedom to seek, receive and impart information and ideas of all kinds". A motion to replace the word "seek" with "gather", thus excluding the right of active inquiry, was defeated in the UN General Assembly. The States voting against the motion stated that active steps to procure and study information should be protected and that any abuse on the part of journalists could be sufficiently prevented under the limitations clause in paragraph 3.[193]

3.33 The right of the press to acquire information is justified on the grounds that it is desirable to have an informed public which is able to assess the wisdom of governmental decisions.[194] No citizen can obtain for himself all the information needed for the intelligent discharge of his political and social responsibilities. Much of the fact-finding has to be conducted vicariously by the press. The dissemination of information by the press is often the means by which the public first discovers that an issue is a matter of public importance.

3.34 However, the argument that it is a function of the press to keep the public informed on social issues can only justify a right to impart or receive information without undue interference. It does not give the press a privilege to compel others to disclose information which they are unwilling to impart, nor does it entitle the press to use intrusive means to acquire personal information which others wish to keep private. The freedom to seek and receive information under Article 19 does not provide a person with a right to extract information from an unwilling speaker.[195]

American Convention on Human Rights

3.35 The American Convention on Human Rights ("ACHR") is open for ratification by the member States of the Organisation of American States. About 25 States are parties to the Convention. Canada and the US are members of the Organisation but neither have ratified the Convention. The right to privacy in Article 11 of the ACHR is similar to that in Article 17 of the ICCPR, but the right to freedom of expression in Article 13 of the Convention is more elaborate than that in Article 19 of the Covenant.

3.36 After declaring that the exercise of the right to freedom of expression is not subject to prior censorship but is subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure respect for the rights or reputations of others, or the protection of national security, public order, or public health or morals, Article 13(3) of the Convention provides that:

"the right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions."

3.37 In contrast to the ICCPR, the right of reply is expressly guaranteed by the American Convention:

"1. Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or make a correction using the same communications outlet, under such conditions as the law may establish. 2. The correction or reply shall not in any case remit other legal liabilities that may have been incurred. …"

3.38 The Inter-American Court of Human Rights hears cases submitted to it by the State Parties or the Inter-American Commission on Human Rights after the latter has examined the matter and expressed its opinion. At the request of a member State of the OAS, the Court may also provide a State with opinions regarding the compatibility of any of its domestic laws with the ACHR. In the Licensing of Journalism case,[196] the Court expressed the opinion that compulsory licensing of journalists is incompatible with Article 13 of the Convention if it denies any person access to the full use of the news media as a means of expressing opinions or imparting information. In the Right of Reply case,[197] the Court advised that Article 14(1) of the Convention recognises an internationally enforceable right to reply or to make a correction, and that when the right is not enforceable under domestic law, the State concerned has the obligation to adopt legislative or other measures to give effect to this right.

European Convention on Human Rights

3.39 Freedom of expression in Europe is also protected by Article 10 of the European Convention on Human Rights. The European Court of Human Rights has 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".[198] Subject to such restrictions as are permissible under paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the community.[199]

3.40 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 of Human Rights has therefore ascribed a hierarchy of value, first to political expression, then to artistic expression and finally to commercial expression.[200] The Court is mindful of the fact that journalistic freedom also covers "possible recourse to a degree of exaggeration, or even provocation".[201] Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless "to impart - in a way consistent with its duties and responsibilities - information and ideas on all matters of public interest."[202] Not only does the press have the task of imparting information and ideas on matters of public interest; the public also has a right to receive them. The role of the press has therefore been described as "purveyor of information and public watchdog".

3.41 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 reputation or rights of others, or for preventing the disclosure of information received in confidence. The adjective "necessary" has been construed by the European Court as implying the existence of a "pressing social need". In addition, the interference must be "proportionate to the legitimate aim pursued" and the reasons given to justify it must be "relevant and sufficient".[203] 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.[204]

3.42 Although the European Court in Sunday Times v UK held that it was "faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted",[205] jurisdictions in Europe tend to treat the rights of privacy and free expression as fundamental human rights having equal status. Both the right to freedom of expression and the right to privacy under the European Convention are subject to limitations necessary for the protection of the rights of others.[206] In a resolution on the right to privacy, the Parliamentary Assembly of the Council of Europe[207] declared that the two rights "are neither absolute nor in any hierarchical order, since they are of equal value".[208] It is therefore necessary to find a way of balancing the exercise of two fundamental rights. Where a question arises of interference with private life through publication in the mass media, the State must find a proper balance between the two Convention rights.[209] We note that neither English common law nor most constitutional bills of rights treat the right to freedom of speech as a primary right which always takes precedence over other rights or interests.[210]

3.43 The courts in the UK seem to agree with the Council of Europe that the two rights are of equal value. In Douglas v Hello! Ltd, Sedley LJ held that neither the right to publish under Article 10(1) nor any of the other rights referred to in Article 10(2) is a trump card under the UK Human Rights Act 1998. He said:

"The European Court of Human Rights has always recognised the high importance of free media of communication in a democracy, but its jurisprudence does not - and could not consistently with the Convention itself - give Article 10(1) the presumptive priority which is given, for example, to the First Amendment in the jurisprudence of the United States' courts. Everything will ultimately depend on the proper balance between privacy and publicity in the situation facing the court."[211]

And in Cream Holdings Ltd v Banerjee, Simon Brown LJ said:

"It is one thing to say … that the media's right to freedom of expression, particularly in the field of political discussion ‘is of a higher order' than ‘the right of an individual to his good reputation'; it is, however, another thing to rank it higher than competing basic rights."[212]

3.44 The English courts have also endorsed the approach recommended by the Council of Europe resolution on the right to privacy. In A v B plc, the English Court of Appeal considered that the resolution provided "useful guidance" on the difficult issue of finding the right balance.[213] This approach was subsequently followed by the English courts.[214] However, although the right to freedom of expression is not in every case the ace of trumps, "it is a powerful card to which the courts of this country must always pay appropriate respect."[215] Any impediment to freedom of expression must be on cogent grounds recognised by law.[216]

3.45 In the 1986 case of Winer v UK,[217] the European Commission of Human Rights declared inadmissible a complaint that English law lacked adequate remedies apart from defamation against invasion of privacy. However, the Commission in that case did not decide that there is no positive obligation on the part of a State Party to protect individuals from unwanted publicity in a case where the law of defamation cannot provide a remedy for invasion of privacy. Such a situation would arise when the published facts are true, making it impossible for the aggrieved individual to bring an action for defamation. Nor did the Commission address the situation where the invasion takes the form of an intrusion (eg by surveillance or interception of communications), in which case a restriction on freedom of expression would not be directly involved.[218]

3.46 In Markt Intern v Germany,[219] a case decided in 1987, the European Commission agreed 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 also recognised 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 a degree of protection equal to that given to freedom of expression. The European Court affirmed this view in this case, 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."[220]

3.47 In 1998, the European Court went so far as ruling that Article 10 of the Convention "does not … guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern".[221] It pointed out that:

"By reason of the ‘duties and responsibilities' inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism."^[222]

The requirement that the exercise of freedom of expression carries with it "duties and responsibilities" also applies to the press. People exercising freedom of expression, including journalists, undertake "duties and responsibilities" the scope of which depends on their situation and the technical means they use.[223] The "duties and responsibilities" are liable to assume significance when what is at issue is an attack on the reputation of private individuals and an undermining of the "rights of others".[224]

3.48 Most recently, the applicant in Peck v UK[225]complained about the disclosure to the media of closed circuit television footage recorded in a public street, which resulted in his image being published and broadcast widely. The applicant also argued that there was no effective domestic remedy in relation to the violation of his right to privacy under Article 8. The European Court found in favour of the applicant, noting that breach of confidence did not provide him with an actionable remedy on the facts of his case. The Court did not accept as relevant the UK Government's argument that any acknowledgement of the need to have a remedy would undermine the important conflicting rights of the press guaranteed by Article 10 of the Convention.[226]