Any Top Gear fans out there? If so, you might be interested in reading on…
Yesterday, I was asked by the Daily Telegraph to comment on an interesting case between the BBC and the person who plays the character on the programme Tog Gear known as “The Stig”.
The full details of the matter cannot be revealed publicly (you can read further here: http://www.telegraph.co.uk/motoring/news/7954523/BBC-facing-human-rights-battle-with-Top-Gears-The-Stig.html), however, the matter may potentially lead to a clash between the basic principles of Contract Law and Breach of Confidence, on the one hand, and the basic human right of Freedom of Expression as enshrined in the Article 10 of European Convention of Human Rights (enforceable in the UK under the Human Rights Act 1998), on the other.
Under Article 10, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by a public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema.”
The Convention continues; “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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for the maintaining of the authority and impartiality of the judiciary.”
Article 10 protects your right to freedom of expression. This includes the right to hold and express opinions yourself as well as to receive and impart information and ideas to others.
Prior to the Human Rights Act, the right to freedom of expression was a negative one (you were free to express yourself, unless the law otherwise prevented you from doing so). With the incorporation of the European Convention on Human Rights into English domestic law, the right to freedom of expression is now expressly guaranteed, albeit qualified by section 2 above.
In Handyside v UK (1976) the ECHR stated that freedom of expression constituted one of the essential foundations of a democratic society and one of the basic conditions for its progress and development of every person. It also made clear that Article 10 applied not only to information or ideas that are favourable and inoffensive but also to those that offend, shock or disturb the State or a sector of the population.
However, where an interference with expression has concerned anti democratic ideas and extreme right wing views contrary to the text and spirit of the Convention, the ECHR has varied between excluding the expression from the scope of Article 10 altogether or concluding that the interference is justified by Article 10(2).
The right to freedom of expression in Article 10 is not an absolute right. It is a qualified right. This means that formalities – including Contract Law as laid down by each member state, conditions, restrictions or penalties may be imposed on the exercise of this right if they are prescribed by law, pursue a legitimate aim and are necessary in a democratic society. This latter condition requires the means employed to be necessary and proportionate to the aim pursued. The legitimate purposes for which freedom of expression can be limited are set out in Article 10(2) set out above (see also section headed ‘A qualified right’ under Article 8).
At this stage it is unclear as to whether a challenge to the contract between the aforementioned parties under Human Rights law will be pursued by the “man behind the mask”. He may have a case, but then again, so does the BBC!