The Bill of Rights Bill – what is the effect on reputation management claims?

Percy Preston considers the Bill of Rights Bill ('the Bill') introduced into Parliament on 22 June 2022. This analysis provides insight into the impact of the Bill in a wider European landscape and in relation to privacy law, defamation law and freedom of speech.

The Bill of Rights, the Supreme Court and the European Court of Human Rights

If enacted, the Bill would repeal and replace the Human Rights Act 1998 ('HRA 1998') and rebalance ‘the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament’. Under clause 3(1) of the Bill, the Supreme Court, not the European Court of Human Rights (ECtHR), would be the ‘ultimate judicial authority on questions arising under domestic law’ in connection with the protection of human rights under the European Convention on Human Rights ('the Convention').

As part of the Bill’s attempt to redefine the relationship between the ECtHR and the UK, the English courts would be at liberty to adopt an interpretation of a right that ‘diverges from Strasbourg jurisprudence’ under clause 3(3)(b) of the Bill.

However, clause 3(3)(a) limits the court’s interpretive powers to prevent them from adopting an interpretation of a Convention right that would expand the protection already conferred by the right,‘unless the court has no reasonable doubt that the ECtHR would adopt that interpretation if the case were before it’.

Clause 3(4) of the Bill carves out an exception from clause 3(3)(a) where ‘freedom of speech’ is concerned. Clause 4(1) states that when determining a question which has arisen in connection with the right to freedom of speech, ‘a court must give great weight to the importance of protecting the right’.  So, in protecting the right to freedom of speech, the court will not be prevented from adopting an interpretation of the Convention right which diverges from Strasbourg jurisprudence.

Interpreted in a vacuum, it is difficult to say how far the freedom of speech provisions in the Bill are intended to go beyond the existing HRA 1998, s 12 which states that ‘the court must have particular regard to the importance of the Convention right to freedom of expression’.  Comparing that provision with clause 4 of the Bill does, however, suggest an important difference; unlike the HRA 1998, s 12, the Bill makes no reference to any ‘relevant privacy code’ which the Courts must consider when determining an issue where the right to freedom of speech is engaged.

The Bill of Rights and Privacy Law

In many misuse of private information claims the Courts must engage in a balancing exercise between an individual’s right to privacy, enshrined in Article 8 of the Convention, and a publisher’s, and the public’s, Article 10 rights to impart and receive information.

Clauses 3 and 4 of the Bill appear to be aimed, in part, at restraining and reversing the expansion of English privacy law since the passing of the HRA 1998. Clause 3 of the Bill would prevent the courts, outside of limited circumstances, from expanding the protection conferred by any Convention right, including the rights protected by Article 8 of the Convention. Indeed, the Explanatory Notes to ‘Clause 4: Freedom of speech’ emphasise that the courts are to give particular weight to ‘the importance of protecting freedom of speech whenever courts are balancing the right with competing factors (eg the right to private and family life under Article 8)’. The Secretary of State for Justice, Dominic Raab, has previously expressed his concern that domestic law has imported too much in the way of what he terms ‘continental-style privacy laws’. Whether one agrees with Raab’s characterisation of the development of privacy law in the UK or not, clause 4 signals the government’s intention to strip back the protection currently afforded by Article 8 of the Convention.

What does this mean for misuse of private information claims and any potential remedies available in the tort? Clearly, the Bill is intended to raise the threshold for a successful claim, though by how much is less certain. Clause 22 of the Bill, which would impose limits on the court’s powers to grant relief affecting freedom of expression (i.e. an injunction), is lifted almost entirely from HRA 1998, s 12. The only addition is that the court must now be satisfied, in circumstances where an applicant seeks without notice relief, that there are ‘exceptional’ as well as ‘compelling’ reasons why the respondent should not be notified. What, if anything, the word ‘exceptional’ adds will no doubt be the subject of argument before the courts should the Bill become law.

The Bill of Rights and defamation law

It seems likely that any efforts to bolster freedom of speech will also impact English defamation law. Although the relationship between Article 8 of the Convention and the protection of reputation is equivocal, following Strasbourg’s example, the English courts have suggested that protection of reputation may fall within the ambit of Article 8 in appropriate circumstances (see for example, Pfeiffer v Austria (Application No. 12556/03) and ZXC v Bloomberg [2022] UKSC 5). On its face, however, the text of Article 8 contains no reference to the protection of reputation. Given that under clause 3(2)(a) of the Bill, the English courts would have to give ‘particular regard to the text of the Convention right’, it is conceivable that should the Bill pass, it will reduce the protection for reputation that Article 8 is currently understood to provide and draw a sharper distinction between the interests protected by defamation law on the one hand, and privacy law on the other.

The UK government: a wholesale commitment to free speech?

It is difficult to reconcile the government’s stated intention of bolstering freedom of speech through the Bill and the Online Safety Bill, which is currently at the Report stage in the House of Commons. This Bill would, among other things, impose a duty on social media companies to police ‘legal but harmful’ material on their sites, creating a potential asymmetry between what can be said in-person and what can be said on the internet. Indeed, even the government’s own Members of Parliament have expressed concern at the Online Safety Bill’s potential effect on freedom of speech, with Conservative backbencher David Davis describing the Online Safety Bill as potentially ‘the biggest accidental curtailment of free speech in modern history’.

This article was first published on Lexis® PSL on 3 August 2022 and is reproduced with permission and thanks.