CEDH · CASELAW;CLIN;ENG — 8 avril 2025

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary April 2025 Green v. the United Kingdom - 22077/19 Judgment 8.4.2025 [Section IV] Article 8 Positive obligations Article 8-1 Respect for private life Use of parliamentary privilege by a Member of Parliament to disclose on the floor of the House the applicant’s identity subject to an interim privacy injunction pending trial: no violation Facts – The applicant, a well-known businessman and chairman of a multinational retail company, reached settlements which were subject to non-disclosure agreements (“NDAs”) with former employees of two of its high street brands. He was subsequently contacted by a journalist from the Telegraph Media Group Limited (“the Telegraph”) who intended to publish an article on former employees' allegations that the applicant's professional conduct had involved sexual harassment and bullying. The applicant and the two brands sought an injunction to prevent the Telegraph from publishing material disclosed to it in breach of confidence as well as an interim injunction to preventing disclosure pending trial. An interim injunction and anonymity orders were granted by the Court of Appeal pending an expedited trial. The Telegraph published the article but respected the terms of the injunction. However, a Member of the House of Lords, Lord Hain, invoking parliamentary privilege, made a personal statement on the floor of the House identifying the applicant as the subject of the anonymised article. Lord Hain’s comments were widely reported and the anonymity orders, having become pointless, were discharged by consent shortly afterwards. The applicant discontinued his claim for damages against the Telegraph on the ground that there was insufficient confidentiality left in the information concerned in the case to justify the risk, and the staff time and disruption, involved in pursuing it. In the meantime, the House of Lords Commissioner for Standards assessed a formal complaint lodged by the applicant against Lord Hain for violating the House of Lords Code of Conduct. The Commissioner found that allegations concerning the sub judice rule and parliamentary privilege were outside her remit. She, however, considered the applicant’s complaint that Lord Hain had failed to declare his connection to the law firm representing the Telegraph, which she rejected following an investigation. Law – Article   8: (1) Existence of an interference – The Court found that there had been an interference with the applicant’s right to respect for his private life. The disclosure of his name in the House of Lords, linking him to “serious allegations of repeated sexual harassment, racist abuse and bullying” had attained a sufficient level of seriousness as to harm his reputation. That disclosure had taken place despite the existence of an interim injunction granted by the Court of Appeal, which, having examined in detail the balance to be struck between the Article   8 and Article   10 rights at issue in the case, had concluded that publication would cause immediate, substantial and possibly irreversible harm to all of the claimants, including the applicant. (2) Compliance with Article   8 of the Convention – The question in the present case was whether the positive obligation under Article   8 required the implementation of ex   ante and   ex   post controls to prevent Members of Parliament from revealing information subject to privacy injunctions. The domestic courts, when deciding on the interim injunction, had carried out a careful balancing exercise and had found that the applicant’s Article   8 rights had to be given precedence over the Telegraph’s Article   10 rights. Before the Court, however, it was the right to freedom of speech in Parliament that had to be balanced against the applicant’s competing Article   8 rights. The implications of requiring Parliament to introduce ex   ante and ex post controls on its Members’ speech were necessarily wider than the specific facts of this case and thus the Court had to bear in mind the general nature of the controls the applicant was calling for. It was evident from the Court’s Article   10 case-law that the House of Lords enjoyed a wide margin of appreciation in regulating its own affairs and, by extension, in deciding whether to implement ex ante and ex post controls to prevent its Members from revealing information subject to privacy injunctions. In keeping with the well-established constitutional principle of the autonomy of Parliament, it was in the first instance for national parliaments to assess the need to restrict their Members’ conduct. The Court would require strong reasons to substitute its view for theirs. In the United Kingdom both Houses of Parliament had adopted a sub judice rule, which required Members of the House of Lords to give the Lord Speaker at least twenty-four hours’ notice of any proposal to refer to a matter which was sub judice . That rule provided a degree of ex ante control on the power to use parliamentary privilege to discuss proceedings which were active before the domestic courts. However, as the sub judice rule was not incorporated into the Code of Conduct, breaches of the rules were not within the remit of the House of Lords Commissioner for Standards. Nonetheless, the system of parliamentary privilege was not entirely devoid of ex post control. The Commissioner had been able to consider one of the applicant’s complaints. Moreover, while parliamentary privilege was a matter for Parliament itself, the scope of that privilege was a matter for the courts. In the present case the Government had expressed “no doubt” that Lord Hain’s actions had fallen within the scope of parliamentary privilege. It appeared from the recent survey by the Court in forty-one other Convention States, that in the vast majority of those States, words spoken by a parliamentarian on the floor of the House would also be privileged. However, in a less clear-cut case it would be open to the person concerned to argue before the domestic courts that the parliamentarian’s actions fell outside the scope of parliamentary privilege. If successful, the parliamentarian could be held to be in contempt of court, and there would be no constitutional obstacle to a claim for damages. The need to implement further controls of the kind the applicant sought had been considered and rejected in 2011 by a Joint Committee of both Houses of Parliament. That Committee had noted that examples of information subject to anonymised injunctions being revealed in Parliament were rare and considered that the high threshold for restricting what Members could say during parliamentary proceedings had not yet been crossed. Nonetheless, it indicated that if the revelation of injuncted information became more commonplace, if injunctions were being breached gratuitously, or if there was evidence that parliamentarians were routinely being “fed” injuncted material with the intention of it being revealed in Parliament, then the Committee would recommend that the Procedure Committees in each House should examine the proposals for new restrictions with a view to implementing them. Those conclusions were endorsed the following year by a Joint Committee on Parliamentary Privilege appointed by both Houses of Parliament. While over ten years had elapsed, the applicant had not suggested that there had since been a significant increase in such incidents which would call the above conclusions into question. Indeed, according to the Court’s survey, other Member States had apparently not implemented more robust ex ante and/or ex post controls. On the contrary, in most Member States parliamentary privilege afforded absolute protection from external legal actions to any statements made by parliamentarians in Parliament or, more broadly, in the exercise of their parliamentary duties. Moreover, the Court had previously recognised that the immunity afforded to Members of Parliament in the United Kingdom was in several respects narrower than that afforded to Members of national legislatures in certain other Member States and those afforded to representatives to the Parliamentary Assembly of the Council of Europe and Members of the European Parliament. The results of the above-mentioned survey strongly suggested that was still the case. Although parliamentary speech which violated a domestic court judgment risked undermining both the judicial process and the constitutional balance between the legislature and the judiciary, it was not for the Court to assess the value of parliamentary speech or its contribution to “meaningful debate”. For the Court to find that a speech in Parliament, by a Member of Parliament, fell outside the scope of his or her parliamentary activity would be unprecedented, and would run counter to the operation of parliamentary privilege in the majority of member States. Furthermore, if the Court were to find that the absence of ex   ante and ex post controls on the power to use parliamentary privilege to reveal information subject to an injunction was in breach of Article   8, in order to execute the Court’s judgment Parliament would be required to implement controls – going above and beyond the existing sub   judice rule – to ensure that court orders were not breached in the course of parliamentary debate. Such a finding would in practice render the nature, design and implementation of those controls subject to the Court’s oversight which could amount to indirect control by the Court over the free speech itself, as it would undoubtedly become at least indirectly involved in an evaluation of the statements that had been made in Parliament. Lord Hain’s disclosure had had the sole purpose of overriding the Court of Appeal’s carefully considered conclusions because he had considered it to be in the public interest to reveal the applicant’s identity before the expedited trial had taken place. While his disclosure related to the applicant’s professional behaviour rather than to an intimate aspect of his private life, his anonymity, once lost, had been lost forever. There had also been consequences for the two high street brands and any former employees who had not wanted details of their employment disputes and settlements made public. Nonetheless, the Court considered that for the time being it might be left to the respondent State, and Parliament in particular, to determine whether and to what extent ex ante and ex post controls might be necessary to prevent its Members from revealing information subject to privacy injunctions. However, given the serious impact that the disclosure of such information might have on the privacy of the individual concerned, not to mention the implications for the rule of law and the separation of powers within the United Kingdom constitution of parliamentarians usurping the role of judges, who had considered it necessary, after viewing the evidence before them, to grant an injunction, the Court considered that the need for appropriate controls had to be kept under regular review at the domestic level. Consequently, as things currently stood the rule on parliamentary privilege did not exceed the margin of appreciation afforded to the respondent State and there were no sufficiently strong reasons to justify the Court substituting its view for that of Parliament and requiring it or the respondent State to introduce further ex ante and ex post controls on freedom of speech in Parliament. Conclusion : no violation (unanimously). In addition, the Court rejected, by a majority, as manifestly ill-founded, the applicant’s complaint under Articles   6 §   1 and 13 that he had been denied access to court and an effective remedy since he had been unable to bring a claim against Lord Hain. Lastly it found, unanimously, that no separate issue arose concerning the fairness of the proceedings against the Telegraph. (See Cordova v.   Italy (no. 1) (dec.), 40877/98, 13   June 2022, Legal Summary ; Cordova v.   Italy (no. 2) (dec.), 45649/99, 13   June 2002, Legal Summary ; A. v.   the United Kingdom , 35373/97, 17   December 2002, Legal Summary ; Zollmann v.   the United Kingdom (dec.), 62902/00, 27   November 2003, Legal Summary ; De Jorio v.   Italy , 73936/01 , 3   June 2004; Karácsony and Others v.   Hungary [GC], 42461/13 and 44357/13, 17   May 2016, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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