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Woolas, false statements and free speech

Comments on the electoral offence at the heart of the Phil Woolas case can be found here.

My is point is not about application of the law in the Woolas case or to suggest that there is an unlimited freedom to make false statements, instead it is just to highlight the rationale and some of the consequences of the existing electoral offence.

One point that I do not address is the approach to freedom of expression taken in that case. In particular, the court suggested that statements made dishonestly are excluded from the protection of Article 10. Thomas LJ stated:

Dishonest statements are aimed at the destruction of the rights of the public to free elections (Article 3 of the First Protocol) and the right of each candidate to his reputation (Article 8(1)). Article 10 does not protect a right to publish statements which the publisher knows to be false; similarly Article 17 which provides:

“Nothing in the Convention may be interpreted as implying for any … person any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

The right of freedom of expression does not extend to the publishing, before or during an election for the purpose of affecting the return of any candidate at an election, of a statement that is made dishonestly, that is to say when the publisher knows that statement to be false or does not believe it to be true. It matters not whether such a statement relates to the political position of a candidate or to the personal character or conduct of a candidate when the publisher or maker makes that statement dishonestly. The right to freedom of expression under Article 10 does not extend to a right to be dishonest and tell lies, but s.106 is more limited in its scope as it refers to false statements made in relation to a candidate’s personal character or conduct.

It is one thing to say that expression rights are outweighed when the speaker makes a knowingly false statement of fact, but it is another to say that it is excluded from Article 10 (and can therefore be subject to disproportionate penalties). The difficulty with the court’s reasoning is that it suggests  a statement which impinges on a person’s reputation is aimed at the destruction of that right and should therefore be excluded. This could be true of many different types of statement – for example, a publication containing private information may have the effect of destroying a person’s privacy, but that does not mean Article 10 has no application. Instead, it should mean that the Article 10 right may be outweighed.

This is not the only case where  the application of Article 10 has been limited. In the Jon Gaunt case last summer, the court found that Ofcom’s decision did not interfere with expression rights – in otherwords that Article 10 was not engaged. Really such exclusions of the Article are best kept to the rare extreme cases. My preference is for the court to find that Article 10 is engaged and then consider the necessity of the restriction.  That has been the case in most of the defamation cases that have gone to the European Court of Human Rights. This makes very little difference to the outcome of the case, but is an important point on the court’s methodology.

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