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Freedom Of Political Expression Notes

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Constitutional Law Reading Week 7 Freedom of Political Expression ECHR, Article 10: Freedom of expression. Qualified as "prescribed by law and is necessary in a democratic society" in various interests (e.g. national security etc). Broadly qualified (only "necessary" is required, as opposed to "absolutely necessary"). It is derogable. See Feldman notes- written Special Protection for political speech: (i) MPs and Political Speech Bill of Rights 1689, art 9: That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament Defamation Act 1996: S.13 where a person is engaged in defamation proceedings he may waive protection of what he has said/done in parliament for the purposes of the trial. It doesn't affect the privileged speech or conduct of other people S.14 a "fair and accurate" report of public court proceedings is absolutely privileged if published contemporaneously with court proceedings. If published as soon as possible after the court case, then it is treated as being published contemporaneously The Strauss case (1958) 21 MLR 485 (and Denning's dissent: [1985] PL 80): An MP sent a letter to a minister, passed onto head of British Electricity (BE), that made allegations against the company. The company responded with a letter threatening libel. The House of Commons Committee of Privileges said that the letter from Strauss was a "proceeding in parliament (as Bill of Rights requires) the letter from BE was a breach of 1689 Bill of rights s.9 and that it would take action against the company. The Privy Council upheld this, since the letter was sent under protection of parliamentary privilege. Denning objected saying that the 1770 Parliamentary Privilege Act entitles anyone to bring an action and no action against an MP shall be impeached, stayed or delayed under colour or pretence of any privilege. The Privy Council interpreted "any" narrowly, excluding privileges given under the Bill of Rights. Denning says that the meaning of "any" means "all". He also argues that the HC are not entitled to decide that a breach of privilege occurred (it is the courts' decision) and if the MP had been sued for libel he could have protested privilege to the courts who would have made the decision. HL avoided answering question of whether the letter was a "proceeding in parliament".

A v. United Kingdom (2003) 36 EHRR 51: European Court of Human Rights: A wanted to issue defamation proceedings against an MP who criticised her in parliament but parliamentary privilege prevented her from doing so. She said that this (1) breached her right of fair access to the courts, and (2) breached her right of privacy, since she was being prevented from legally enforcing it. The court ruled that right of access to the courts (article 6) was not absolute and was derogable where there was a legitimate aim and the derogation was proportionate. The legitimate aim was protecting MPs' free speech and given the importance of this regarding the state's elected representatives, it was proportionate. Furthermore, victims are not totally without redress since they can petition the house to secure an apology, while misleading statements are punishable by the HC's own procedural bodies. The legitimate aim and proportionality issues are the same regarding right to private life and in this way too the derogation is allowed. Leopold "Free Speech in Parliament and the Courts" [1995] 15 Legal Studies 204: Says NZ has almost identical privilege laws to UK and exams a recent case where a NZ representative sued a TV company for defamation which had claimed he had lied to parliament. The NZ CA said that since it would be unfair to proceed with the claim when the representative would be unable to adduce evidence from parliament (due to privilege and no power to waiver) the action would be stayed until NZ parliament passed a law to allow waiver of privilege. Privy Council supported this. Leopold argues that English authorities suggest courts couldn't recognise waiver of privilege even if a law was passed (This has been proved WRONG as demonstrated by the application of the Defamation Act 1996). She argues that to allow waiver would make MPs more reticent in expressing views (WRONG- it would MPs who have option to waiver) and also that privilege exists to protect witnesses before select committees. The Courts in UK have adopted a broad definition of article 9 Bill of Rights, saying it applies to all parliamentary proceedings. This is opposed to Australian authority that interprets it as saying that parliamentary statements cannot be the cause of an action, though they can be used for evidence. Journalists and Political Speech Fayed v. United Kingdom (1986) (1994) 18 E.H.R.R. 393: F wanted to take over a company and a parliamentary commission undertook a public report into his conduct which X had attacked. The report was bad for F who argued that its contents breached article 6 - Right to a fair trial and to be heard before a tribunal. European Court of Human Rights said that article 6 was only engaged where there was a dispute decisively determining F's civil rights or obligations. Clearly that wasn't the case here so article 6 wasn't engaged. Here, the parliamentary committee was carrying out an investigatory function. Beach v. Freeson [1972] 1 QB 14: Beach v Freeson 1969: An MP had heard complaints from constituents about a solicitors firm and wrote a letter to the Law Society detailing the complaints. It was accepted that the letter WAS defamatory but that, since the MP was acting within his duty, his letter was privileged and he wasn't liable for libel.

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