Human Rights Act reform consultation: Scottish Government response

4. How could the current position under section 12 of the Human Rights Act be amended to limit interference with the press and other publishers through injunctions or other relief?

135. A free, vibrant and independent press forms an essential part of the bedrock of a functioning, modern democracy. The Scottish Government is therefore unequivocal in its support for freedom of expression, including the protection which this right affords to journalists.

136. The right to freedom of expression recognised in Article 10 of the ECHR is however a qualified right which the ECHR explicitly identifies as one which "carries with it duties and responsibilities". A particular obligation is placed on States Parties to ensure that the right is exercisable, inter alia, in a way that prevents the disclosure of information received in confidence and which protects the reputation or rights of third parties.

137. It is therefore clear that the ECHR requires a careful balance to be struck between the right to freedom of expression and the Article 8 right to respect for private and family life. In striking that balance, the Scottish Government does not believe that Article 10 rights should automatically or inflexibly be prioritised over those set out in Article 8 which protect the privacy of the individual. There is nothing to indicate that Article 10 was intended (or has been applied), for example, to override that right to privacy in order to facilitate the publication by the media of salacious gossip or the sensationalised reporting of the intimate and personal details of a person's private life.

138. A series of media scandals in recent years involving intrusive and unnecessary coverage, including the use of illegal methods such as phone hacking, have underlined the dangers which can arise when an appropriate balance is not achieved.

139. One particularly important lesson from this experience is that self-restraint and good judgment on the part of the media are not always sufficient means of protecting members of the public against unjustified breaches of their privacy. Whilst celebrities have been the most obvious targets for such intrusion, the impacts have also been felt by many others in society, including victims of crimes and individuals caught up unwittingly in major events and news stories.

140. The Scottish Government is therefore committed to ensuring the practices which led to the establishment of the Leveson Inquiry do not recur and believes that all individuals should have the ability to seek redress^[31] when they feel they have been the victim of press malpractice.

141. At the same time, there are necessarily also instances when the private conduct of an individual is indeed a matter of genuine public significance. That is particularly the case where the individual in question holds high public office, plays an important leadership role or otherwise exerts significant public influence. It is essential that the media are not prevented from reporting on matters which genuinely do merit public scrutiny^[32].

142. For the reasons set out above, the HRA already recognises that the courts have a central role in ensuring that the appropriate balance is struck between the rights established by Articles 8 and 10. Indeed, section 12 of the HRA explicitly directs the courts to "have particular regard to the importance of the Convention right to freedom of expression" and to "the extent to which … it is, or would be, in the public interest for the material to be published".

143. That test is one which appears to the Scottish Government to be the correct one. Section 12 as it currently stands is consistent with both the purposes of the ECHR and with the importance of allowing the courts to reach a judgment in light of the particular facts of an individual case.

144. The Scottish Government is very clear that privacy should not be breached for trivial reasons or simply for commercial gain. The proper test to apply is whether there are strong and compelling public interest reasons which override the right to privacy. The courts are best placed to make an objective and impartial judgment of whether that test has been met.

145. As a result, the Scottish Government does not consider that section 12 of the HRA requires amendment.