Same as it ever was: no room for talking heads! National security, free speech and judicial deference

A number of domestic laws seek to protect national security from harmful speech and expression, and in doing so impinge on the values inherent in freedom of expression. This can be achieved by imposing criminal liability on persons who disclose sensitive information, penalising the speaker and dissuading them, and others, from communicating information to the press or to the public. Alternatively, the civil law can be employed against such persons, or those, including the press, who assist in the breaking of other's contractual or other duties of confidentiality. The latter method allows prior restraint, as well as post-speech sanctions, although internal security policies accommodate a system of prior authorisation, whereby a person can seek, and be refused, permission to publish specific material, allowing the authorities to restrict or ban publication, at least until that refusal is successfully challenged.
Because such restrictions impinge on free speech and the public ‘right to know’, both the domestic courts and the law of the European Court of Human Rights must consider the legitimacy and proportionality of these restrictions. In particular, Article 10(2) of the Convention, as given effect to by the Human Rights Act 1998, insists that legal regulations are sufficiently clear to be prescribed by law, are being employed to secure a legitimate aim, and that any restriction, criminal or civil, does not impose a disproportionate interference on individual free speech. As we might expect, judicial deference from the domestic courts, and within the Strasbourg Court’s margin of appreciation, offer a great deal of discretion to the executive authorities in this balancing exercise, the judiciary being reluctant to interfere with administrative or legislative discretion where there is a tangible threat to national security and public safety.