10) Art 8 and 10: Indirect Horizontal Effect Flashcards
1
Q
Which direction does the HRA 1998 primarily operate?
A
- Operates in a verticle direction
- Providing rights for individuals when public authorities intefere with Convention Rights
2
Q
Can the HRA also have an influence over the legal determination of claims between private individuals and private organisations with legal personality?
A
- YES
3
Q
Where does the “Indirect horizontal effect” arise from?
A
- s6(3)(a) HRA
- Recognises that courts and tribunals are public authorities
- Therefore obliged to act compatibbility with the Convention (s6(2) HRA)
4
Q
What is the result of the “indirect horizontal effect”
A
- Courts are under a duty to apply and develop the common law in accordance with the demands of the Convention.
- Recognised in Douglas v Hello
* s6(3)(a) HRA
5
Q
Douglas v Hello
A
- Art 8 rights of applicant and art 10 of the defendant magazine.
- Courts as a public authority cannot act in a way which is incompatible with a convention right. ** s6(1) **
- Including their activity in interpreting the develop law, even where no public authority is party to the litigation
6
Q
Are courts a public authority?
A
Yes
7
Q
Did the HRA create a new, free-standing cause of action between private individuals?
A
- No
- Must be a pre-existing cause of action, to “hang” the Convention right
8
Q
If a private party wishes to invoke a Convention right in a dispute with another private party, what is needed?
A
- Must be a pre-existing cause of action against another private party
- Upon which to “hang” the Convention right
9
Q
Waightwright v Home Office
A
- No general common right to privacy in domestic law
- Limited protection for invasions of privacy by private individuals, provided by the long established breach of confidence
- Affords remedy for personal information
- Emphasised this cause of action required there to be a prior relationship of confidence between the parties CoCo v An Clark (Engineers Ltd
Developed law in Campbell v MGN
10
Q
Campbell v MGN
A
- CoA had dismissed Naomi Campbell
- Claim against the MIrror Group for breach of confidence
- HoL established a new (tortious) action of “misuse of private information”
Developed from Wainwright v Home Office
11
Q
Campbell - Misuse of private information
A
- Cause of action has shaken off the limiting constraint of the need for an initial confidential relationship
- Time has come to recognise the values enshrined in Art 8 and 10 are now part of the cause of action for breach of confidence
12
Q
What two elements are necessary for determining whether there has been misuse of private information?
A
- Is article 8 engaged? - depends on whether the applicant has a* “reasonable expectation of privacy”*
- Conduct a balancing exercise - balance competing rights in articles 8 and 10 consider whether the publication was necessary.
13
Q
The media and article 10
A
Rights to freedom of expression enjoyed by definition
14
Q
A
15
Q
Reasonable expectation of privacy - when information is obviously privaate
A
- Was the information obviously private?
Then person affected can **reasonably expect their privacy to be respected. **
16
Q
If information is not obviously private?
A
- Courts will consider whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of disclosure, would find the disclosure offensive.
Campbell
17
Q
What is the nature of private information?
A
- Must include information personal to the person who possesses it
- And he does not intend to be imparted to the general public.
- Nature of information / form it is kept, may be sufficient to make it plan that the information satisfies these criteria
**Douglas v Hello
18
Q
Murray v Express Newspapers
Reasonable expectation case law
A
- Broad question of whether there is a reasonable expectation of privacy
- Take into account all of the attributes of the claimant
- Nature of the activity that claimant was engaged in
- Place it was happening
- Nature and purpose of the intrusion
- Absence of consent
- Whether it could be known or inferred the effect of the claimant on publication
19
Q
Browne v Associated Newspapers Ltd
A
- No reasonable expectation of privacy in respect of information that is in the public domain
- Whether the information is in the public domain is a matter of fact and degree
- Depends on specific circumstances
20
Q
McKennit v Ash
A
- Person can choose to waive reasonable expectation
- By placing information in public domain.
- Placing some information in publci domain - does not meant that every aspectof their private life is open to scrutiny
21
Q
Photograph taken in a public place of a routine act, such a shopping
A
Campbell - not essentially private, does not engage art 8
Von Hannover v Germany (No1) - contrasting
22
Q
Princess Caroline going about daily life (shopping)
A
Von Hannover v Germany (No1) - - Purely private pictures.
23
Q
Murray case
A
- Covert photos of JK Rowling & son
- Proceedings issued on son’s behalf for infirngement of privacy contrary to art 8
- Court of Appeal found son did have a reasonable expectation of privacy
1. Clandestine photo to be sold without consent
2. Action was brought on behalf of a child
3. Parent’s had taken great care to keep him out of the public eye - to live a normal life
24
Q
Murray - why did the court find in favour of the son
A
- Clandestine photo to be sold without consent
- Action was brought on behalf of a child
- Parent’s had taken great care to keep him out of the public eye - to live a normal life
25
Axon v MoD
* Applicant sued MoD Re civil servants disclosure to The Sun, that he had been removed from role as a commanding officer on Navy Frigatt due to bullying.
* No reasonable expectation of privacy as was **a public function**
* Judge treated impact of Axon's behaviour on fighting effectiveness of the ship as being relevant because of **the reasonable expectation of privacy**
26
Re JR38's Application
* The applicant (14 yo) did not have a reasonable expectation of privacy - in relation to phots published showing they had been involved in serious rioting in N Ireland
* CCTV, part of police campaign to discourage rioting.
* **Minority considered art 8 engaged - interference with right was justified in circumstances**
27
Balancing of articles 8 and 10
**Media example**
* Applicant seeks to protect their privacy = **misuse of private information** = art 8
* Media will argue that this interferes with its **right to publish information** = art 10
28
Von Hannover v Germany No 1
**Balancing assessment**
* Decisive factor in balancing the protection of private life against freedom of expression
* = the contribution that the published photos and articles make to a debate of general interest
29
Von Hannover v Germany NCaseo 1
**Case**
* Princess Caroline o f Monaco
* Sought injunctions from domestic courts
* Prevent publication of pics of her family in the German media = violated their article 8 rights
* Press argued she was a public figure of note = should tolerate levels of intrusion
* She argued ues when carying official duties.
**Found their had been a breach of art 8. Publication of pictures did not contribute to debate of general interest as depicted applicant within private life. **
* The court found a **positive obligation** on the state to provide **necessary protection**
30
What type of obligation is inherent in respect of private of family life?
Positive obligations
31
Re S (a child)
* 8 year old child, mother charged with murder of brother.
* Newspapers published nmes and photos of family without referring to this child.
* Held in balance of Art 10 - requirement for **open justice**
* Less important compared with cases where juveniles have committed offences
32
Lord Steyn on approach to interplay between competing Convention rights
* Neither article takes precedence over the other
* Where values are in conflict
* An intense focus on the comparative importance of specific rights being claimed.
* Justifications for interfering to be taken into account.
* Proportionality test to be applied
33
Von Hannover v Germany (No2)
* How domestic courts should balance the two articles.
* Sought and injunction against ski holiday photos and ill health of father,
* Granted injunction on ski photographs as not if general public interest
* Ill health of her father, Prince Rainier was of general public interest
* Germany had not failed re its obligation to respect art 8 rights. Ba
34
Von Hannover v Germany (No2)
**Criteria **
* Article 8 and 10 are of **equal value**
Criteria that are balanced
1. Does the infomation contribute to debate of **general interest**
2. How **well known i**s the person concerned and subject matter
3. The **prior conduct** of the individual concerned
4. The **form and consequences** of the publication
5. The **circumstances** in which the photos were taken, whether phtographed person gave **consent**
35
HRH Prince of Wales v Associated Newspapers
* Prince Charles hourbak extrcts
* Private and personal thoughts vs political nature and claimant's public life
* HRH had **reasonable expectation of privacy**, when balancing competing interests **there was a strong public interest in preserving confidentiality**
36
Mosley v News of the World
* President of Formula 1 gov body
* Nazi S&M Orgy
* Contested the Nazi theme
* Mosley had **reasonable expectation of privacy**; Public interest in Nazi / Holocaust parodying given **Public Role** - but no evidence of this.
* Treatment of claimant unsatisfactory - gravity of allegations and impact
37
**Trafigura Ltd **is a key case for what?
* The **use of injunctions** to attempt to restrain publication in some cases
38
Trafigura Ltd
* Interim injunction to prevent publication of compnay report concluding disposal of oil waste on Ivory Coast would cause injury to local people.
* Super- injunction
* Raised in HoC
* Super injunction seen as an attempt to restrict reporting of parliamentary proceedings, therefore a restriction on the trasparency and openness which are required in a system governed by the rile of law
39
Super injunction
* Prevents news papers discussing the existence of the injunction itself
*** RJW v Guardina News and Media Limited**
40
What conduct of the parents may enhance the case for an injunction?
* Impact of parent's misdeeds on the lives of children
* Enhance the case for an injunction
* Protection for children
*** Claimant can bolster their case because of their own wrong doing**
41
Should individuals receive notification from press in advance of publication of information interfering with their private lives?
* Argued by Mosley using article 8
* Dismissed as having a **chilling effect on the right to freedom of expression**
* Also showed that a **wide margin of appreciation is conceded to states wehn complying with positive obligations under art 8**
42
OJS v News Group Newspapers Ltd
* Celebrity sex life case
* Press argued so many people had already found out, no point injuncting
* Still a tort of invasion fo privacy - even if publication has previously been made
43
What has brought about the "indirect horizontal effect" of the HRA?
Section 6(3)(a) HRA
44
What is the "indirect horizontal effect" of the HRA?
* Courts and tribunals are identified as **public authorities**
* Must act in accordance with **s6(1)** and make decisions that are compatible with the Convention
* Even if both parties are private individuals
45
What is a commonplace course of action that engages article 8?
* The Tort of misue of Private information
| **Campbell**
46
What are the two elements necessary for determining misuse of private information?
* Applicant must have **reasonable expectation of privacy**
* Court will **conduct a balancing exercise between the competing interests**
47
In what way does Article 8 usually operate?
* In a verticle way
* Allowing claims against public authorities
