Article 10: freedom of expression
Model answer
The Guardian published an extract from Peter Wright’s book, Spycatcher. The book contained
allegations that MI5 had conducted unlawful activities. The government was successful in getting a court
injunction preventing the Guardian from publishing the story until a court case was finished (where the
government were suing Peter Wright for disclosing confidential information in his story). The court case
finished and the book was published in many countries including the UK. However, the Guardian still
couldn’t publish their story because the injunction didn’t end.
Advise the Guardian as to how the provisions of Article 10 of the European Convention on Human
Rights might apply to these facts.
The Guardian has a right to freedom of expression under Article 10 of the Human Rights Act 1998.
The Guardian could sue the government for stopping them publishing the story about the Spycatcher.
Following Goodwin v UK the Guardian’s rights to communicate ideas and information have been
interfered with. This will also restrict the rights of UK citizens to be informed about what happened
with the MI5.
The public could have an interest in being informed by the Guardian about this story as it concerns the
activities of the MI5. If the MI5 have acted unlawfully as the article alleges then the public could have
a right to know what happened. Also, as the information is already being published in other countries
and by other newspapers it does not seem necessary to stop the Guardian
Following Garuady v France the court could allow the government to block the publication of the
story because the story could harm MI5. The story could release secret information that put
investigations at risk of being unsuccessful. MI5 deals with secret information and releasing this
information could put the public at risk of crime.
The government can try and justify the interference with the Guardian’s free speech under their Article
10 rights. They would need to satisfy the general requirements under Article 10.2 to justify this.
First they must show that the restriction was justified by law. This means they must be able to prove
an Act of Parliament or case law exists that allows them to block the Guardian’s story. Secondly the
restriction must be shown to be necessary. It does not appear to be necessary as the story has already
been published so the public might already know the story. Finally, the restriction would seem to meet
the legitimate aim of protecting national security because it involves keeping intelligence work secret.
The Guardian’s Article 10 rights have been breached. The court could award damages which would be
small but would help improve human rights in society by allowing more freedom of speech.