Date: Wed, 27 Sep 2006 15:06:28 +0100

From: Andrew Dickinson

Subject: A Postscript to Blake

Blake tried a number of grounds before the ECHR (including Art. 10 and Art. 1, Protocol 1), but most were rejected at the admissibility stage.

-----Original Message-----
From: Eoin O'Dell
Sent: 27 September 2006 13:53
Subject: ODG: Re: A Postscript to Blake

Dear all,

Thanks to Ralph for bringing this our attention. The ECHR holds that the case took so long that Blake's Article 6 right to a fair trial was infringed. I wonder whether the case also raises another potential Convention point. We know from Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 that if damages are too high in defamation cases, even if there is properly an underlying cause of action, a disproportionate remedy can still be a breach of Article 10's protection of freedom of expression. Since I heard that Blake had gone to the Court on Article 6 grounds, I have occasionally idly mused whether a similar point might have been made there: that although there was properly an underlying cause of action for breach of contract, nevertheless the account ordered by the House of Lords was so disproportionate that there was a breach of Blake's Article 10 rights to publish his memoirs.

There's quite a bit of EHCR law on disproportionate defamation damages infringing Article 10; and there is similar US First Amendment jurisprudence both in respect of libel, and (in Snepp v US 444 US 507 (1980); noted on this kind of point by Birks [1987] LMCLQ 421) on facts similar to Blake; but there is nothing directly on this issue in the ECHR, so it seems to be a straightforward question of principle, to which my idle musings produced no clear answer.

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