Article 6(2) of the Convention was not violated by a provision which enabled a newspaper proprietor or publisher to escape strict liability under section 4(5) of the Sexual Offences (Amendment) Act 1976 only if he proved, on the balance of probabilities, that he was in no way at fault in connection with the offending publication.
‘The applicant submits that his conviction constitutes a disproportionate interference with the right to freedom of expression under Article 10 of the Convention. He points out that imposing criminal liability upon non-editorial newspaper managers can lead to undue interference by them with the content of material to be published and can create a disincentive to invest in newspapers. He maintains that, in order to strike a proper balance between freedom of expression and the legitimate aim pursued by the Act, such fault should be required to be proved on the part of such managers, which should entail more than failure to read a newspaper in advance of publication… He maintains that if mere access to editorial contents is sufficient to prevent application of the section 5(5) defence, then that defence becomes useless.
The Court notes that the parties agree that the relevant provisions … restrict freedom of expression for the purposes of Article 10 of the Convention, and that the restriction pursued a legitimate aim. It notes also that the restriction was prescribed by law. The key issue in this case is therefore the proportionality of the impugned measures … The Court notes that the relevant provisions of the Act did not require the prosecution to prove that the applicant was at fault in any way in connection with the publication of the offending article … In particular, section 4(3) requires trial judges to lift the prohibition in certain cases where the public interest so requires. Further, section 5(5) allows those charged, like the applicant, with the section 4(5) offence to escape criminal liability by proving, on the balance of probabilities, that they were not aware, and neither suspected nor had reason to suspect, that the publication concerned would identify a rape victim.’ and ‘The Court considers that it may be legitimate to hold newspaper proprietors in part responsible for the contents of their newspapers when those contents impinge upon the rights of others (cf Surek v Turkey (No.1) [GC], no. 26682/95, S 63, Reports of Judgments and Decisions 1999-IV)…the Court does not consider that the applicant’s conviction and fine constituted a disproportionate interference with the right to freedom of expression under Article 10 of the Convention. It follows that this part of the application is inadmissible as being manifestly ill-founded…’
Citations:
44223/98, Unreported, 02 July 2002
Statutes:
Sexual Offences (Amendment) Act 1976 4(5), European Convention on Human Rights 6(2)
Jurisdiction:
Human Rights
Cited by:
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – O’Riordan v Director of Public Prosecutions Admn 19-May-2005
An offender had absconded with a child and was to be prosecuted for sex offences against her. The police circulated all the journalists who had had contact to say that an identification of the defendant would also identify the girl. The defendant . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 30 April 2022; Ref: scu.218813