Conflict Between Privacy and Freedom of Speech

The second section of the European Convention on Human Rights sets out the freedoms that citizens should have. There are many of these, including freedom from torture and slavery and from retrospective punishment for an act that was not illegal when it was performed.

Of particular interest are the articles relating to privacy (Article 8) and to freedom of expression (Article 10). It’s easy to imagine situations in which these two freedoms could come into conflict. The rest of this article explores this possibility and how the conflict can be prevented.

Freedom of Speech

Most people would agree that freedom of speech, or freedom of expression in general, is a necessity. Societies that have very strict controls about what their citizens can write or say, typically in order to try to control what they think, are oppressive and we should be vigilant against policies that could take us down this route ourselves.

However, it would be anarchy if there were no rules at all about what people can say or do. The freedom of expression of one person should not be allowed to cause harm to some other person. This is why, for example, there are laws against expressing racial and religious hatred.

Slander

A non-permanent defamation of an individual or organisation is called slander. In other words, if one person speaks a lie about another person, causing harm to that person’s reputation, then slander has occurred.

The freedom of expression does not allow people to cause damage to others by spreading false gossip about their character or activities.

Libel

Simply put, libel is the same but in recorded form. When newspapers or magazines are brought before the courts, for allegedly invading someone’s privacy (typically that of a celebrity) they are answering charges of libel.

Such an action typically has a wider audience than a slanderous one. It is also easier to prove. If someone tells a lie about you to someone else, you would find it very difficult to prove that the alleged conversation actually took place and even harder to convince a court what was said. If you have been libelled, in contrast, the facts about what was disclosed and to whom are generally not in question. Such a case instead revolves around whether what was said was untrue and whether its disclosure can be said to have been in the public interest.

The Public Interest

Sometimes the interest of the wider population can be seen to outweigh the interest of an individual. For example, if a judge is discovered by a tabloid newspaper to have had a relationship with a defendant that they subsequently tried, exposing the conflict of interest should reasonably take precedence over the rights of the judge and the defendant to keep their actions confidential. In contrast, if pictures of a celebrity’s holiday on a private island are published, the claim that these were in the public interest would be more difficult to defend.

The Issue of Privacy

When our rights come into conflict, it can be difficult to decide how the matter should be resolved. However, when someone expressing themselves harms someone else’s privacy, the right to confidentiality of the injured party should generally take precedence. There must be extenuating circumstances for this not to be the case, such as issues of national security or genuine public interest.