Media Law

Freedom of Speech I.

 

 Freedom of speech as principle

 a.      case Lebach (Germany):

"According to the *Bundesverfassungsgericht, the personality right of *Art. 2 § 1 Basic Law guarantees every individual an ”autonomous space for the private formation of life, where one can develop and keep one’s individuality”. This comprises the right to “remain alone” to the exclusion of being exposed to others. Everybody is entitled to decide autonomously if and how far others may report on certain aspects of his private life. In substance this privacy right inter alia encompasses the portrait of a person, private facts and words uttered in private.

Nevertheless, certain public interests may justify an infringement of privacy: Recognised are, for instance, the public’s right to information and the freedom of the press. However, the *Bundesverfassungsgericht defined the balancing test between both interests in such a way to give strong protection to personality rights as they can be found in the central provisions of the Basic law. The Court held that in those circumstances it has to be established in every single case why the public interest should have priority and whether the infringement was absolutely necessary to pursue the public interest goal, taking into account its intensity and scope. That way the Court developed a general balancing test that clearly sought to recognise and protect individual privacy rights.

In the specific field of crime reporting, the Court weighed the public interest in publication against the criminal’s privacy rights. They said that the severity and time of the crime are of utmost importance. In the case of a recent crime of some severity, the publication rights, as a general rule, gain priority. In the case of a documentary ten years after a crime in the temporary context of a criminal’s release the publication must be such as not to harm his personality for a second time. Pictures showing the offender at the time of release or the announcement of his full name might hinder his re-integration into society and are, thus, prohibited. To this extent the claim of the driver against the ZDF film was well founded." (http://www.law.ed.ac.uk/ahrc/personality/gercases.asp#Lebach)

 

 

Fundamental rules for freedom of speech restrictions

 a.      EU (as defined by ECHR)

 

PRESCRIBED BY THE LAW:  

 
1. "The law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.

2. "Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
 
CONTENTUAL PRINCIPLES
 

b.     USA (as defined by the Supreme Court of the USA)

CLEAR AND PRESENT DANGER DOCTRINE

 

 



 BAD TENDENCY DOCTRINE


 


 
PREFERRED POSITION DOCTRINE
 FIGHTING WORDS   


 


 

 Term “public interest”

Crone, Tom: Law and the Media. Oxford : Elsevier Science. 2002. p. 16.:  „It is for the defendant to prove that the matter upon which he passed comment is one of public interest. The judge, rather than the jury, rules on this question if it is at issue. There is a difference between matters that the public find interesting and matters of public interest. The court has adopted a generous approach in defining the legitimate areas of public interest.

 

In the words of Lord Denning in London Artists Ltd v Littler (1969):
Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.
 
National and local government and politics, all forms of art, literature and entertainment, and court cases are all matters of public interest. So too are the individuals who appear in those various arenas. Attacks on the individuals involved may be the subject of valid comment so long as they are directed at the work or performance rather than being personal attacks. Anyone seeking public attention, for example by protesting or writing open letters to newspapers, is a valid subject for comment, as is the conduct of those whose activities affect a significant number of other people, for example employers, charities, managers and directors of companies – and the media.“
 
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"One established exception is the defence of comment on a matter of public interest. This defence is available to everyone, and is of particular importance to the media. The freedom of expression protected by this defence has long been regarded by the common law as a basic right, long before the emergence of human rights conventions. In 1863 Crompton J. observed in Campbell v. Spottiswoode (1863) 3 B. & S. 769, 779, that 'it is the right of all the Queen's subjects to discuss public matters'. The defence is wide in its scope. Public interest has never been defined, but in London Artists Ltd. v. Littler [1969] 2 Q.B. 375, 391, Lord Denning M.R. rightly said that it is not to be confined within narrow limits. He continued:

 'Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.'
 
Traditionally one of the ingredients of this defence is that the comment must be fair, fairness being judged by the objective standard of whether any fair-minded person could honestly express the opinion in question. Judges have emphasised the latitude to be applied in interpreting this standard. So much so, that the time has come to recognise that in this context the epithet 'fair' is now meaningless and misleading. Comment must be relevant to the facts to which it is addressed. It cannot be used as a cloak for mere invective. But the basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury. The true test is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it: see Diplock J. in Silkin v. Beaverbrook Newspapers Ltd. [1958] 1 W.L.R. 743, 747.
It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Further, to be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made: see the discussion in Duncan and Neill on Defamation, 2nd ed. (1983), pp. 58-62.
One constraint does exist upon this defence. The comment must represent the honest belief of its author. If the plaintiff proves he was actuated by malice, this ground of defence will fail"
 
The public interest defence will protect disclosures as are proportionate to the public interest.
 

 

 

 

 

 

 

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