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this was a party election broadcast. Any risk of distress could have been safeguarded by
transmitting the programme after 10.00pm with a suitably explicit warning at the beginning
of the programme.
In my view, even on the basis of the most searching scrutiny, Prolife Alliance has not made
out a case for interfering with the broadcasters™ decisions. Clearly the context in which mate-
rial is transmitted can play a major part in deciding whether transmission will breach the
offensive material restriction. From time to time harrowing scenes are screened as part of
news programmes or documentaries or other suitable programmes . . . But, even in such
broadcasts, the extent to which distressing scenes may be shown must be strictly limited, so
long as the broadcasters remain subject to their existing obligation not to transmit offensive
material. Parliament has imposed this restriction on broadcasters and has chosen to apply
this restriction as much to party broadcasts as to other programmes. The broadcasters™ duty
is to do their best to comply with this restriction, loose and imprecise though it may be and
involving though it does a significantly subjective element of assessment.
The present case concerns a broadcast on behalf of a party opposed to abortion. Such a
programme can be expected to be illustrated, to a strictly limited extent, by disturbing pic-
tures of an abortion. But the Prolife Alliance tapes went much further. In its decision letter
dated 17 May 2001 the BBC noted that some images of aborted foetuses could be accept-
able depending on the context: ˜What is unacceptable is the cumulative effect of several
minutes primarily devoted to such images.™ None of the broadcasters regarded the case as
at the margin. Each regarded this as a ˜clear case in which it would plainly be a breach of
our obligations to transmit this broadcast™. In reaching their decisions the broadcasters stated
they had ˜taken into account the importance of the images to the political campaign of the
Prolife Alliance™. In my view the broadcasters™ application of the statutory criteria cannot be
faulted. There is nothing, either in their reasoning or in their overall decisions, to suggest
they applied an inappropriate standard when assessing whether transmission of the pictures
in question would be likely to be offensive to public feeling.
I respectfully consider that in reaching the contrary conclusion the Court of Appeal fell into
error in not observing the distinction between the two questions mentioned above, one of
which was before the court and the other of which was not. Laws LJ said (at [22]) the ˜real
issue™ the court had to decide was ˜whether those considerations of taste and offensiveness,
which moved the broadcasters, constituted a legal justification for the act of censorship
involved in banning the claimant™s proposed PEB™. The court™s constitutional duty, he said (at
[37]), amounted to a duty ˜to decide for itself whether this censorship was justified™. The
letter of 17 May 2001 gave ˜no recognition of the critical truth, the legal principle, that con-
siderations of taste and decency cannot prevail over free speech by a political party at elec-
tion time save wholly exceptionally™: [44] . . .
The flaw in this broad approach is that it amounts to rewriting, in the context of party
broadcasts, the content of the offensive material restriction imposed by Parliament on broad-
casters. It means that an avowed challenge to the broadcasters™ decisions became a chal-
lenge to the appropriateness of imposing the offensive material restriction on party
broadcasts. As already stated, this was not an issue in these proceedings. Had it been, and
had a declaration of incompatibility been sought, the appropriate Government minister
791 Liberty and the constitution


would need to have been given notice and, no doubt, joined as a party to the proceedings.
Then the wide-ranging review of the authorities undertaken by the Court of Appeal would
have been called for.
As it was, the Court of Appeal in effect carried out its own balancing exercise between the
requirements of freedom of political speech and the protection of the public from being
unduly distressed in their own homes. That was not a legitimate exercise for the courts in
this case. Parliament has decided where the balance shall be held. The latter interest prevails
over the former to the extent that the offensive material ban applies without distinction to
all television programmes, including party broadcasts. In the absence of a successful claim
that the offensive material restriction is not compatible with the Convention rights of Prolife
Alliance, it is not for the courts to find that broadcasters acted unlawfully when they did no
more than give effect to the statutory and other obligations binding on them. Even in such
a case the effect of section 6(2) of the 1998 Act would have to be considered. I would allow
this appeal. The broadcasters™ decisions to refuse to transmit the original version, and the
first and second revised versions, of Prolife Alliance™s proposed broadcast were lawful.

This approach may be contrasted with that of Lord Scott (dissenting):

Lord Scott: . . . The short issue in the case is whether the broadcasters, the BBC and the ITV
companies, acted lawfully in declining to transmit the television programme submitted to
them by the Prolife Alliance as the Alliance™s desired party election broadcast for the purposes
of the 2001 general election.
It is accepted that the broadcasters™ refusal to transmit the Prolife Alliance™s programme
engages article 10 of the European Convention on Human Rights . . .
The right to impart information and ideas does not necessarily entitle those who desire
to do so to be supplied with the means or facilities necessary to enable the information to
be conveyed to the desired audience. A person who has written a book or a play cannot insist
on having it published by a publisher, or placed on someone else™s bookstall, or, if a play,
staged in someone else™s theatre. But radio and television broadcasting are different.
Licences are required. And licences are granted on conditions that impose restrictions as to
the contents of programmes that can be broadcast. So article 10 is engaged.
It follows that, in the present case, the Prolife Alliance is entitled to say that the criteria
applied to its desired party election programme by the broadcasters in deciding whether or
not to accept the programme should be no more severe than are
˜necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary™ (Article 10(2)).
I have set out in full the article 10(2) heads under which restrictions on article 10 rights can
be justified notwithstanding the obvious inapplicability of most of the heads to the reasons
why the Alliance™s proposed programme was rejected. I have done so because it seems to
me helpful to notice their comprehensive character. The application of restrictions allegedly
792 British Government and the Constitution


in the public interest but not justifiable under any of these heads would, in my opinion, con-
stitute a breach of article 10 rights . . .
It was not contended by counsel for the Alliance that a restriction barring the televising
of a programme likely to be offensive to public feeling was, per se, incompatible with article
10. Nor should it have been. The reference in article 10(2) to the ˜rights of others™ need not
be limited to strictly legal rights the breach of which might sound in damages and is well
capable of extending to a recognition of the sense of outrage that might be felt by ordinary
members of the public who in the privacy of their homes had switched on the television set
and been confronted by gratuitously offensive material.
Nor, as my noble and learned friend, Lord Nicholls of Birkenhead, has pointed out, was it
contended before your Lordships that the content of party election broadcasts should be
subject to any textually different restrictions from those applicable to other programmes. The
requirement that broadcasts should not offend good taste and decency or be offensive to
public feeling is not necessarily an article 10 breach in relation to party election broadcasts
any more than it is in relation to programmes generally. The issue, therefore, on the present
appeal is a narrow one. It is whether the rejection by the broadcasters of this particular pro-
gramme, the purpose of which was to promote the cause of the Alliance at the forthcoming
general election, was a lawful application by the broadcasters of the conditions by which
they were bound. To put the point another way, was their rejection of the Alliance™s desired
programme necessary in a democratic society for the protection of the right of home-owners
that offensive material should not be transmitted into their homes?
The issue is one that is fact-sensitive. The relevant facts seem to me to be these. (1) The
Prolife Alliance is against abortion. (2) Its candidates at general elections stand on a single
issue, namely, that the abortion law should be reformed so as either to bar abortions alto-
gether or, at least, to impose much stricter controls than at present pertain. This is a lawful
issue and one of public importance. (3) The Alliance™s desired programme was factually
accurate. Laws LJ (at [13]), described what was shown in the programme thus: ˜The pictures
are real footage of real cases. They are not a reconstruction, nor in any way fictitious. Nor
are they in any way sensationalised.™ There was no dissent from this description. (4) Laws LJ
went on to describe what was shown in the programme as ˜certainly disturbing to any person
of ordinary sensibilities™. This, too, was not disputed. (5) It was accepted that, if the pro-
gramme was to be transmitted, it would have to be transmitted in the late evening, and be
preceded by an appropriate warning. (6) Television is of major importance as a medium for
political advertising. That this is so has throughout been recognised on all sides.
The decision to refuse to broadcast the programme was communicated to the Alliance by
a letter of 17 May 2001 from the BBC. The letter said that the BBC, and the ITV broadcast-
ers, had concluded that ˜it would be wrong to broadcast these images which would be offen-
sive to very large numbers of viewers™. Was this a conclusion to which a reasonable decision
maker, paying due regard to the Alliance™s right to impart information about abortions to the
electorate subject only to what was necessary in a democratic society to protect the rights
of others, could have come?
In my opinion, it was not. The restrictions on the broadcasting of material offending
against good taste and decency and of material offensive to public feeling were drafted so
as to be capable of application to all programmes, whether light entertainment, serious
793 Liberty and the constitution


drama, historical or other documentaries, news reports, party political programmes, or what-
ever. But material that might be required to be rejected in one type of programme might be
unexceptionable in another. The judgment of the decision maker would need to take into
account the type of programme of which the material formed part as well as the audience
at which the programme was directed. This was a party election broadcast directed at the
electorate. He, or she, would need to apply the prescribed standard having regard to
these factors and to the need that the application be compatible with the guarantees of
freedom of expression contained in article 10.
The conclusion to which the broadcasters came could not, in my opinion, have been
reached without a significant and fatal undervaluing of two connected features of the case:
first, that the programme was to constitute a party election broadcast; second, that the only
relevant criterion for a justifiable rejection on offensiveness grounds was that the rejection
be necessary for the protection of the right of home-owners not to be subjected to offen-
sive material in their own homes.
The importance of the general election context of the Alliance™s proposed programme
cannot be overstated. We are fortunate enough to live in what is often described as, and
I believe to be, a mature democracy. In a mature democracy political parties are entitled,
and expected, to place their policies before the public so that the public can express its
opinion on them at the polls. The constitutional importance of this entitlement and expec-
tation is enhanced at election time.
If, as here, a political party™s desired election broadcast is factually accurate, not sensa-
tionalised, and is relevant to a lawful policy on which its candidates are standing for election,
I find it difficult to understand on what possible basis it could properly be rejected as being
˜offensive to public feeling™. Voters in a mature democracy may strongly disagree with a policy
being promoted by a televised party political broadcast but ought not to be offended by the
fact that the policy is being promoted nor, if the promotion is factually accurate and not sen-
sationalised, by the content of the programme. Indeed, in my opinion, the public in a mature
democracy are not entitled to be offended by the broadcasting of such a programme. A refusal
to transmit such a programme based upon the belief that the programme would be ˜offensive
to very large numbers of viewers™ (the letter of 17 May 2001) would not, in my opinion, be
capable of being described as ˜necessary in a democratic society . . . for the protection of . . .
rights of others™. Such a refusal would, on the contrary, be positively inimical to the values of
a democratic society, to which values it must be assumed that the public adhere.


(See further on this case, Barendt [2003] PL 580, Macdonald [2003] EHRLR 651
and Rowbottom (2003) 119 LQR 553.)


(f) Conflict of rights
Di¬erent Convention rights protected by the Human Rights Act may come into
con¬‚ict. In particular, freedom of expression (Article 10) may con¬‚ict with the
right to respect for private and family life (Article 8). Each of these rights may
be restricted by law so far as necessary in a democratic society inter alia for the
protection of the rights of others (Articles 8(2) and 10(2)). In case of con¬‚ict it
794 British Government and the Constitution


is accordingly necessary for the court to balance one right against the other with
reference to the particular circumstances, giving to each right its due value and
having regard to the principle of proportionality.
Concern was expressed during the passage of the Human Rights Bill that
freedom of the press might be curtailed by judicial decisions giving undue
weight to respect for privacy. The press were especially apprehensive of the threat
of prior restraint of publication by the grant of interlocutory injunctions by the
courts, freezing press comment in matters still to be tried. The Government
responded with an amendment (now section 12 of the HRA) designed to safe-
guard press freedom (but not restricted to cases a¬ecting newspapers).
Section 12 applies if a court is considering, in civil proceedings, whether to
grant any relief which might a¬ect the exercise of the Convention right to
freedom of expression. The section is not limited to cases in which one of the
parties is a public authority. It is provided in particular (s 12(3)) that inter-
locutory injunctions “ only in exceptional circumstances to be granted without
notice, the respondent not being present or represented “ are not to be granted
unless the court is satis¬ed that the applicant is likely to succeed on the merits
at the trial. Such injunctions will accordingly not be granted simply to preserve
the existing position of the parties pending the full trial. Further, in deciding
whether to give any relief the court ˜must have particular regard to the impor-
tance of the Convention right to freedom of expression™ (s 12(4)). While this
provision demonstrates the importance attached to freedom of expression and
the media, it does not ˜require the court to treat freedom of speech as para-
mount™ (Sir Andrew Morritt V-C in Imutran Ltd v Uncaged Campaigns Ltd
[2001] 2 All ER 385, [18]); it is a ˜powerful card™ but ˜not in every case the ace
of trumps™ (Brooke LJ in Douglas v Hello! Ltd [2001] QB 967, [49]). In pro-
ceedings relating to journalistic, literary or artistic material, the court must also
have particular regard to the fact or imminent likelihood of the material being
in any event available to the public, the extent to which publication would be in
the public interest, and any relevant privacy code (such as the Press Complaints
Commission™s code of practice).
It is contemplated that persons complaining of intrusions into their privacy
by the press will still ordinarily take their complaints to the Press Complaints
Commission and that the courts will normally respect its determinations. (The
Commission is a public authority and as such must, like the courts, give due
weight to Convention rights and fairly balance them when they are in con¬‚ict.)
But direct access to the courts in such cases is not excluded.


Venables v News Group Newspapers Ltd [2001] Fam 430 (Dame
Elizabeth Butler-Sloss P)
The claimants had been convicted of murder when eleven years old and sen-
tenced to be detained during Her Majesty™s pleasure. Injunctions had been
imposed to prevent publication of information about them during the period
795 Liberty and the constitution


of their detention. Having reached the age of eighteen and their release being
in prospect, the claimants applied to have the injunctions continued, in partic-
ular so as to prevent disclosure of information about the new identities to
be given to them on release, their whereabouts and physical appearance. The
defendant newspaper groups contended that the injunctions sought would be
an unjusti¬able interference with freedom of expression. Although the court
was concerned with matters of private law in litigation between private indi-
viduals, the President of the Family Division was satis¬ed that, the court being
a public authority, she was bound to protect the Convention rights of the parties
in adjudicating upon issues that arose from an established cause of action at
common law. Evidence was submitted for the claimants that publication of
information about them would put them in danger of serious injury or death
and it was argued that the con¬dentiality of that information merited protec-
tion under the law of con¬dence.
The claimants relied upon Article 10(2) of the Convention which allows for
restrictions on freedom of expression, inter alia ˜for preventing the disclosure
of information received in con¬dence™. They also invoked Articles 2 (right to
life), 3 (prohibition of torture and inhuman treatment) and 8 (right to respect
for privacy). The judge observed that she would ˜have to resolve a potential
con¬‚ict between Article 10 on the one hand and Articles 2 and 3 and 8 on the
other hand™. If freedom of expression was to be restricted the criteria in Article
10(2), ˜narrowly interpreted™, would have to be met:

The onus of proving the case that freedom of expression must be restricted is firmly upon
the applicant seeking the relief. The restrictions sought must, in the circumstances of the
present case, be shown to be in accordance with the law, justifiable as necessary to satisfy
a strong and pressing social need, convincingly demonstrated, to restrain the press in order
to protect the rights of the claimants to confidentiality, and proportionate to the legitimate
aim pursued.

The judge was satis¬ed that the restriction resulting from the injunctions
sought would be in accordance with the law, speci¬cally the equitable duty of
con¬dence. The duty extended to con¬dential information which came to the
knowledge of the media, and which in the circumstances of the present case

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