ABSTRACT
In attempting to determine how far the statutes in question afford any recognition to freedom of expression, it must be remembered that they were framed by a Parliament which had no legal brake upon its powers; it still does not have to have regard to a written constitution forcing it to take freedom of speech into account. Thus, until recently, it was prepared to frame laws which, if fully enforced, would severely damage freedom of expression. However, such laws are not always fully enforced; if they were, the consequent clash between the media and the Government would tend to bring the law into disrepute. Thus, although by examining the provisions of these statutes, an indication of the ‘balance’ Parliament had in mind may be gained, other more nebulous factors, including public concern for media freedom, must also be taken into account. But, now, it is not only possible, but also necessary for Parliament, public authorities and the courts to take a stronger stance in favour of freedom of expression, since the HRA 1998 has created a duty to have regard to the guarantee of freedom of expression under Art 10 of the Convention. Legislation must be read by the courts in a manner which gives effect, so far as possible, to Convention rights (s 3 of the HRA 1998); and, if this is not possible, a declaration of incompatibility may be issued (s 4). Further, the Human Rights Act 1998 gives special regard to the importance of freedom of expression (s 12) and forbids restraint of publication before a full trial, unless the court is satisfied that the applicant will win at trial. Thus, it is submitted that both statutory and common law restrictions on freedom of expression will undergo fresh scrutiny, with a possible change in the balance against decency.
