Scottish Human Rights Law Group

The jurisprudence of the European Court of Human Rights sets a high hurdle before any prior restraint on publication may be said to be Convention compatible:

“(a) Freedom of expression constitutes one of the essential foundations of a democratic society; subject to paragraph (2) of article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.  Freedom of expression, as enshrined in article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.  (b) These principles are of particular importance as far as the press is concerned.  Whilst it must not overstep the bounds set, inter alia, in the ‘interests of national security’ or for ‘maintaining the authority of the judiciary’, it is nevertheless incumbent on it to impart information and ideas on matters of public interest.  Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’.

[...]

[T]he dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court.  This is especially so as far as the press is concerned for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all interest and value.”

   See, too, R (Hirst) v Home Secretary [2002] 1 WLR 2929 per Elias J. at 2937:

“News is perishable, and news stories have to be put together within a very short space of time.  Concern over certain aspects of prison conditions, for example, will often arise from some specific event.  The journalist must catch the tide or the impact of the story will be lost.  (As Ms Rogers points out, the courts have recognised this fact: see for example the comments of Lord Nicholls of Birkenhead in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 205 and, in a different context, of Munby J in Kelly v British Broadcasting Corporation [2001] Fam 59, 90.  Indeed, it is in part this fact which causes the courts to be reluctant to impose prior restraints on the press: see The Observer and The Guardian v United Kingdom(1991) 14 EHRR 153, 191.)

This case is available here

Aidan O’Neill