Freedom of Expression
Mello Jones and Martin · September 1st, 2007
According to a BBC history feature about seapower and Captain Cook, scurvy was at one time responsible for approximately 40 percent of all deaths in the Royal Navy. The symptoms of an extreme case were unpleasant to say the least, and included “a plethora of gum tissue sprouting out of the mouth, which immediately rotted and lent the victim’s breath an abominable odour.” I am sure you are wondering what scurvy has to do with freedom of expression, so let me quickly explain.
Suppose that I phoned a radio talk show and said: “The Government? Bah, they are nothing but a worthless bunch of scurvy politicians!” Such a statement would be in very poor taste, but would I have defamed the Government, or would I merely be exercising my constitutional rights? The answer is that, in a democracy, I have a right to make myself ridiculous by making ridiculous statements about the Government.
Freedom of speech is not an absolute right anywhere, but it is one of the most important human rights, and freedom of the press is generally acknowledged to be essential to the healthy functioning of a democracy. The European Court of Human Rights has said that the press “affords the public with one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.”
While researching the relationship between freedom of expression and politics, I came across David Bartlett’s 1999 article, “Corruption and Lying in a Parliamentary Democracy.” Bartlett reviews the background to the Nolan Inquiry into “Standards in Public Life.” His conclusions about the moral and institutional failure of the British parliament are thought-provoking. Bartlett notes that some British politicians were willing to place their private economic interests above ethics, and “prepared to lie to colleagues and in Parliament, to the public and the media, and even in the courts when it is necessary to protect those interests.”
I omitted to mention earlier that one of the consequences of scurvy was a kind of blindness. Thus King Lear: “Get thee glass eyes, and like a scurvy politician, seem to see the things thou dost not.” The problem in the UK was quite the reverse: scurvy politicians who did see things, but affected not to do so for all kinds of reasons, and found fault with the press instead.
Significantly, Bartlett concluded it had been the press not Parliament or the courts that had demonstrated “the capacity and interest to expose the corrupt activities of individual politicians and the institutional structures protecting them.”
Returning to Bermuda, our right to freedom of expression is protected by Section 9 of the Constitution. Although we commonly speak of having a right of “freedom of speech,” the law also protects non-oral expression such as writing, painting and film. The freedom is not limited to “giving” our opinions, but also includes the right to “receive” opinions and information from others.
The only exceptions to our right to free expression tolerated by the Constitution are limits imposed by law, and then only if the legal limitations are of a kind “necessary in a democratic society.” The laws of defamation and contempt of court provide clear examples of limitations permitted by the Constitution.
The courts have rejected the argument that different legal rules apply to the media when they publish stories about public figures, and as we now know, difficult cases can arise involving politicians. There is a tension between the right of the press to publish and the public to know, and the rights of the politicians to be protected under the law in the same way as everyone else. But this raises an interesting question: should elected politicians be treated the same way as ordinary citizens when it comes to the laws of libel?
In the United States, the decision of the Supreme Court in Sullivan v New York Times established that, unless the politician could show that the newspaper either knew or was reckless as to whether the information it published was false, an action for defamation by a politician would not succeed.
Influenced by the decision in Sullivan, the High Court of Australia has also found a way to develop the law so that elected politicians are now required to meet a heavier burden than private citizens in order to establish defamation.
In England, the courts have not developed the law as far as the US and Australian courts, although it has been decided that a government department may not bring an action for defamation in respect of a political story, but only for malicious falsehood, which requires actual damage to have been suffered by the government department.
The European Court has stated that the limits of acceptable criticism are wider in the case of politicians, and that politicians should not be treated the same as private citizens by libel laws. The Court’s reasoning is that a politician “inevitably and knowingly lays himself open to close scrutiny of his very word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.”
One of the interesting things about Section 9 and Article 10 European Convention on Human Rights (ECHR) is that they are very similar in important respects, with the result that the case law of the European Court is directly relevant to the interpretation of Section 9 in our own courts. The European Court has shown time and again that it attaches very great importance to the fundamental civil and political liberties protected by the ECHR, and has signalled that member states may need to modify their libel laws accordingly. Perhaps it is time to consider amending our own law?
Reference and Sources
International and Regional Conventions
Article 19 Universal Declaration of Human Rights 1947
Article 19 International Covenant on Civil & Political Rights 1966
Article 10 European Convention on Human Rights and Fundamental Freedoms 1950
Article 13 American Convention on Human Rights 1969
United States and Canada
First Amendment to United States Constitution
Section 2 Canadian Charter of Rights and Freedoms
Bermuda
Section 9 Bermuda Constitution 1968
Administration of Justice (Contempt of Court) Act 1979
Books
Beatson, Jack and Cripps, Yvonne (editors) “Freedom of Expression and Freedom of Information” (2000) Oxford University Press
Campbell, Tom; Goldsworthy, Jeffery and Stone, Adrienne (editors) “Protecting Human Rights : Instruments and Institutions” (2003) Oxford University Press
Gearty,Conor “Principles of Human Rights Adjudication” (2004) Oxford University Press
Leigh,David and Vulliamy,Ed “Sleaze : The Corruption of Parliament” (1997) Fourth Estate
Klug,Francesca, Starmer,Keir and Weir,Stuart “The Three Pillars of Liberty : Political Rights and Freedoms in the United Kingdom” (1996) Routledge
Articles
Bartlett, David M.C. “Corruption and lying in a parliamentary democracy: British politics at the end of the twentieth century” (1999) 30 Crime Law & Social Change 205-235
Loveland, Ian “Reforming Libel Law: The Public Law Dimension” (1997) 46 International and Comparative Law Quarterly 561-585
Oliver, Dawn “Regulating the Conduct of MPs. The British Experience of Combating Corruption” (1997) Political Studies XLV, 539-558
Proudler, Geraldine "Libel law in the dock" (1997) 8 (3) British Journalism Review 31-35
Rusbridger,Alan “Why Are We the Libel Capital of the World ?” (1997) 8 (3) British Journalism Review 25-30
Cases
Bermuda Fire & Marine Insurance Company Limited (in Liquidation) v BF&M Limited and others [1999] Bda LR 46
Commissioner of Police and Attorney General v Bermuda Broadcasting Co Ltd and others [2007] Bda LR 40
Derbyshire County Council v Sunday Times [1993] 1 AER 1011
New York Times v Sullivan (1964) 376 US 254
Stephens v West Australian Newspapers Ltd. (1994) 68 ALR 713
European Court
Castells v Spain (1992) 12 EHRR 445
Lingens v Austria (1986) 8 EHRR 407
Oberschlick v Austria (1995) 19 EHRR 389