(2) “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society….for the protection of the reputation or rights of others….”
Case 1 - O’ Shea v MGN Ltd & Another
Material Facts
There was a publication in a newspaper of an advertisement for a pornographic website; the ad included a photo of a well - known glamour model that had consented to the use of her photo. However, although the claimant in the case accepted that the woman in the photo was not her, she alleged that the photo bore such a resemblance to her that the readers of the ad who knew her would believe that it was a picture of her.
The legal issue that was debated in this case was: can you sue for libel on grounds of a ‘look-a-like’ photo (because people who know you will think it is you)?
Judgement: The High Court held in favour of the defendant publishers. The legal reasoning was that it would impose an intolerable burden on a publisher if he was required to check if the true picture of one person resembled someone else, who might be defamed in the context
From article 10 (2) of E.C.H.R. (freedom of speech) the H.R.A. 1998 provided a defence to a claim in defamation where none was available before.
Summation
O ‘ Shea is a case that provides evidence for those who are supportive of the Human Rights Act through its application of Article 10 of the E.C.H.R. which in this case ensured that a ‘common sense approach’ was taken; so as to not stretch the common law strict liability rule beyond what was necessary in a democratic society.
Case 2 - Grobbelaar v News Group Newspapers and Another
Material Facts
At the time Bruce Grobbelaar was the Liverpool Football Club goalkeeper, when he was finally caught accepting money on camera for match fixing. He did this by letting in goals so as to influence betting for the people that paid him. The jury in the Court of Appeal said that The Sun newspaper hadn’t libelled Mr Grobbelaar and awarded Mr Grobbelaar £85 000. The defendants were then granted leave to appeal to the House of Lords…
The legal issue that was debated in this case: was whether on appeal damages that the Court of Appeal had awarded could be overturned in respect to libel actions by the House of Lords?
Judgement: The House of Lords held that the decision of the CA was wrong and that The Sun had libelled Mr Grobbelaar but the award of £85 000 damages could not be supported and would be reduced to a nominal £1. The legal reasoning behind this judgement was that the House of Lords wanted to emphasise the constitutional right of free speech under domestic law and article 10 (1) of the E.C.H.R.
Summation
Grobbelaar a is case that further strengthens the support for the Human Rights Act because it interprets Article 10 effectively, without having to be creative and re-designing what the legislation intended, to reach a more ‘just’ verdict i.e. it removed the original award of damages and replaced it with a more contemptuous award.
Conclusion
The two cases, in the context of defamation, both illustrate how the Human Rights Act 1998 has been extremely useful as an aid to reach a more reflective verdict of what the general consensus of society would deem appropriate today. The verdicts are both ‘common sense’ and ‘just’. One could interpret these decisions by saying that the Human Rights Act has served to update the judicial precedent in defamation case law. The cases are an absolute example of supportive evidence of the Human Rights Act’s compatibility and application.
900 Words
Bibliography
Martin, E. A. (2001), Oxford Dictionary of Law, 5th Edition, Oxford: Oxford University Press
Darbyshire, P. (2001), Eddey & Darbyshire On The English Legal System, 7th Edition, London: Sweet and Maxwell
Stychin, C.F. and Mulcahy, L. (2003), Legal Method: Text and Materials, 2nd Edition, London: Sweet and Maxwell
Stychin, C.F. and Mulcahy, L. (2003), Legal Method: Text and Materials, at p. 251 para. 2
[2001] All ER (D) 65 (May)
