A series of judgments by the Strasbourg court has begun to blur the boundaries between privacy and defamation cases, according to Hugh Tomlinson QC. His concerns are supported by the free-speech organisation Index on Censorship, which warns that the ECHR precedents could "hamper investigative journalism" in Europe.
In an article highlighting legal developments in cases involving television and newspapers in Austria, Finland and Hungary, Tomlinson, a leading media and privacy expert, has queried adoption of novel criteria in defamation and libel cases.
"In three recent defamation cases the [ECHR] has analysed the issues not on the basis of truth and verification but using criteria designed to strike a balance … in privacy cases," he wrote in the Inforrm Blog.
The criteria, which refer to whether the issue is of general interest, whether the person is well known, how information was obtained and consequences of publication, were defined in a separate German privacy case in 2012 involving the publisher Axel Springer. One sub-clause only refers to veracity.
These criteria, Tomlinson said, were "not well-suited to balancing reputation and freedom of expression where the claim is for defamation".
If the central issue in such a case is the truth of the allegations, he added, "how the information was obtained and how well known the claimant [is] have no obvious relevance".
In the Austrian case, a local newspaper reported allegations about two politicians who were standing for election. They sought responses from the men, phrased the allegations as questions and did not assert that they were true.
The newspaper's conduct was responsible and "in accordance with the ethics of journalism", Tomlinson argued. "There is a clear and obvious risk that the application of such criteria outside the area for which they were developed will lead the court into error."
"In each of these cases, the [ECHR's] attempt to balance Articles 8 [right to family life, privacy and reputation] and 10 [freedom of expression, under the European convention on human rights] by using privacy criteria was, at best, irrelevant to the issues which it had to decide."
Padraig Reidy, of Index on Censorship, said: "Traditionally there has been some overlap between privacy and defamation – two areas where it's widely perceived that some curb on free speech is justified. But conflating the two is very dangerous. The test of a libel case is whether a statement is true and/or in the public interest.
"Introducing breaches of privacy as extra criteria in defamation could seriously hamper investigative journalism, which, pretty much by its nature, involves delving into details some would prefer to remain secret."
Renewed concern about the expansion of privacy regulations comes in the wake of an intense political debate in the UK two years ago over the use of so-called privacy super-injunctions to suppress publication.
Many continental countries, such as France, have traditionally had a far stronger sense of privacy rights built into their legal system.
In separate political exchanges, the ECHR has repeatedly been accused by the justice secretary, Chris Grayling, of expanding its jurisdiction and failing to set limits to its legal remit.
(Published by The Guardian – February 2, 2014)