Attorney-General's Reference No 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order  UKHL 34 (17 June 2009) The House of Lords has held that, in the interests of the right to freedom of expression, it was a reasonable intrusion on the right to privacy to publish the name of a defendant acquitted of rape.
D was charged with ‘a most shocking offence’, the rape of a 66 year old woman. At D’s trial, the trial judge excluded highly persuasive DNA evidence that was crucial to the Crown’s case. D was subsequently acquitted. The Attorney-General referred the trial judge’s ruling on evidence to the Court of Appeal. Ultimately, on appeal to the House of Lords, the Lords held that the excluded evidence could have been properly admitted by the trial judge in the exercise of the trial judge’s discretion.
Before the reference was heard by the House of Lords, the Lords made an anonymity order preventing any reporting that would disclose D’s identity. No reasons were given for the making of the Order.
BBC intended to broadcast a documentary revealing the identity of D, and sought to have the Order overturned. The issue before the Lords was whether, in discharging the Order, the Lords would breach D’s right to privacy under the European Convention on Human Rights. Ultimately, the Lords found in favour of BBC and discharged the Order, allowing the BCC to reveal D’s identity.
The Convention rights
At the centre of this decision is a fundamental tension between two rights protected by the Convention – the right to privacy and the right to freedom of expression. Was publication of D’s name enough to engage his right to privacy and, if so, was the BBC’s right to freedom of expression sufficient to overcome D’s right to privacy in the circumstances?
Article 8(1) of the Convention provides that ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.
The Lords accepted that, under the influence of human rights instruments such as art 8, personal information, including one’s name, is worthy of protection, and that publication of D’s name would – in the circumstances of this case – engage his art 8 right to privacy.
The question flowing from this finding was whether art 8(2) nevertheless entitled the BBC to exercise its right to freedom of expression in publishing D’s name. Article 8(2) provides:
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of […] the protection of the rights and freedoms of others.
Balancing the right to privacy and freedom of expression
Protection of privacy must be balanced against the freedom of expression guaranteed by art 10, which is subject to the protection of the ‘reputation and rights of others’. Lord Hope held that the tests to be applied in such a situation are well settled. They are:
- whether publication of the material pursues a legitimate aim; and
- whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy.
Neither article has prima facie precedence over the other. The decisive factor in balancing the competing rights is weighing up the extent to which the published material contributes to a ‘debate of general interest’.
The Lords concluded that BBC was entitled to publish D’s name. Although the interference with D’s art 8 right was significant, it was justified by reference to the ‘undoubted public interest’ in the publication of D’s name. Three key findings underpinned this conclusion.
First, reporting of criminal trials promotes confidence in the administration of justice and the rule of law. According to Lord Brown, central to reporting criminal trials is the identity of the defendant, without which – from the media’s point of view – the BBC’s documentary about the trial would be ‘very much disembodied and have a substantially lesser impact upon its audience’. Hence there is significant public benefit derived from BBC identifying D.
Second, ‘judges are not newspaper editors’. In response to a submission that BBC could make virtually the same contribution to the general debate without disclosing D’s identity, the Lords expressed reluctance to encroach upon the media’s judgement in presenting journalistic material. Article 10 ‘protects not only the substance of the ideas and the information expressed but also the form in which they are conveyed…judges are not newspaper editors.’ Lord Hope held that determining where the balance is to be struck between the competing rights must be approached on this basis. Despite explicitly agreeing with each other, Lord Hope’s reasoning on this point appears inconsistent with the statement by Lord Brown that press reporting lacks impact if it fails to disclose the identity of the defendant, an opinion that does impart a judgment on how journalistic material is presented.
Third, upholding the Order would place D in a better position regarding anonymity than if he had merely been acquitted. Lord Brown placed great significance upon the fact that, had the Attorney-General not referred D’s case to the Court of Appeal, the Order would not have been made and the media would be free to report the full details of D’s trial and his identity.
Relevance to the Victorian Charter
Sections 13 (‘Privacy and Reputation’) and 15 (‘Freedom of expression’) provide broadly similar protections under the Charter. In Australia, suppression orders in criminal trials are not uncommon, and this case highlights the tensions inherent in these competing rights in situations where the media seeks to disclose the identity of alleged criminals or defendants acquitted of criminal charges.
The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/34.html.
Andrew Rodger, Human Rights Law Group, Mallesons Stephen Jaques