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European Court of Human Rights; Scotland: Violation of Convention Provision on Free Expression

(Dec. 13, 2010) On December 7, 2010, the European Court of Human Rights (ECHR) ruled that Scotland had violated articles 10 and 13 of the European Convention on Human Rights. (Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005, COUNCIL OF EUROPE website,
[click on links for the text and for the list of signatures and ratifications] (last visited Dec. 8, 2010). Those articles concern the right to free expression and the right to an effective remedy; Scotland is alleged to have violated them by limiting the rights of the media to report on trials and to challenge court orders. The United Kingdom has three months in which to appeal the decision. (Julia Zebley, Europe Rights Court Finds Scotland in Violation of Media Rights, PAPERCHASE NEWSBURST (Dec. 7, 2010),

The decision came in the case of Alan Mackay, who in 2004 was a reporter for BBC Scotland and who wanted to write about improper steps taken by the police and prosecutors in a drug trial. A judge had barred both the reporter and the station from covering the story, based on section 4 (2) of the Contempt of Court Act, 1981. (Id.; Contempt of Court Act 1981 c. 49, UK STATUTE LAW DATABASE,
(last visited Dec. 8, 2010).)

The ECHR stated:

[U]nder the present system, any Scottish court which makes a section 4(2) order is under no obligation to hear representations from the media and, even where it does hear such representations, there is no obligation upon it to do so within a reasonable period of time and in any event prior to the proceedings to which the section 4(2) order relates. … The Court has repeatedly stated that freedom of expression constitutes one of the essential foundations of a democratic society and that, in that context, the safeguards guaranteed to the press are particularly important. … When proper consideration is given to what is at stake for the media when section 4(2) orders are imposed, it becomes apparent that current Scottish practice provides too slender a basis for the safeguards which are required in this context. (Zebley, supra.)

Neither Mackay nor BBC Scotland had sought any relief in the matter. (Id.)