Balancing Articles 8 and 10

Question 1

What is Article 8 ECHR

Answer 1

The right to respect for private and family life

Question 2

What is Article 10 ECHR

Answer 2

The right to freedom of expression

Question 3

Basis of the claim

Answer 3

Right breached is Article 8, so Human Rights are an issue

Question 4

HR claims can only be brought against public authorities

Answer 4

S.6 HRA

Question 5

Newspapers are not public bodies, but a claim can be brought under horizontal effect

Answer 5

Douglas v Hello

Question 6

If there is a relevant cause of action applicable, the court as a public authority must act in a manner compatible with both parties’ convention rights

Answer 6

Campbell v Mirror

Question 7

Court should develop action for breach of confidence in such a manner as to give effect to both Articles

Answer 7

Douglas v Hello

Question 8

Where was duty of confidence established?

Answer 8

Campbell v Mirror.

Law imposes this where a person receives information he knows or ought to know is fairly reasonable to be regarded as confidential

Question 9

Law offers protection to information even in circumstances where there is no pre-existing relationship giving rise to an enforceable duty of confidence

Answer 9

Mosley v News Group Newspapers

Question 10

What is the test for breach of confidence?

Answer 10

Threshold test “Campbell”

Is there a reasonable expectation of privacy such as to engage Art 8 at all?
Objective view

Question 11

Threshold test

Answer 11

1. Nature of material
2. All circumstances (e.g. location)
3. Ordinary/everyday acts can still be private, especially with children (Murray v Express Newspapers)
4. No photography or no publication without consent (Campbell)

Question 12

Has there been an interference with convention rights?

Answer 12

Discuss Article 8 and 10

Question 13

Article 8 ECHR

Answer 13

1. Article 8(1) relates to privacy. If there has been a breach of confidence, claimant had a reasonable expectation of privacy and their right was breached
2. A qualified right, meaning claimant will have to show that the publication was not “necessary in a democratic society” to achieve legitimate aims set out in Article 8(2)

Question 14

Article 10 ECHR

Answer 14

1. Publication will argue that it has a right to disclose information under 10(1) freedom of expression

• hold/express opinions
• receive and impart information

2. Qualifies right, meaning publication will argue restricting freedom of expression is not necessary in a democratic society to achieve legitimate aims in Art 10(2)

Question 15

How will courts balance conflicting rights?

Answer 15

1. Where HR are engaged, court will apply Bank Millay test of proportionality
2. Where two convention rights are engaged
   - proportionality of interfering with one has to be balanced against the proportionality of restricting the other (Baroness Hale in Campbell)
   - newspaper will argue right to privacy can be limited under Art 8(2) (e.g. setting record straight issue “Campbell”)
   - claimant will argue right to freedom of expression can be limited under Art 10(2) (e.g. reputation)

Question 16

Guidelines for balancing rights

Answer 16

Neither right takes precedence

S.12(4) HRA prevents claims of breach of privacy from restricting freedom of press.

Courts must regard freedom of expression and consider extent to which material is in public domain and interest

Question 17

Proportionality test = Baroness Hale in Campbell

Answer 17

1. Examine comparative importance of rights in individual case
2. Examine justification for interference with rights
3. Apply proportionality test to both

Question 18

Rule from Campbell

Answer 18

Article 8 was not infringes by disclosure of info that she took drugs, as she claimed not to

However, it was infringed by printing of photos as she had reasonable expectation of privacy with regards to location of NA meeting

Question 19

Due to specific circumstances (children) public figure in public place may still have right to respect for private life

Answer 19

Murray v Express Newspapers

Question 20

Von Hannover

Answer 20

Picture of princess skiing not to be breach due to fathers illness. It was said to be in public interest to see how Royal Family dealt with issue

Question 21

A public figure’s sex life will be private and disclosure of details must be linked to debate of general interest

Answer 21

Mosley

Question 22

What is the decisive factor when balancing rights

Answer 22

Whether published photos or articles make a contribution to a debate of public interest.

If they don’t, court may intervene to protect rights of respect to privacy care life

Question 23

Parent can object to another parent taking pictures of child in public without consent

Answer 23

Reklos

Question 24

Injunction can be awarded to stop newspapers from printing photos which had been posted on FB

Answer 24

Rocknroll v News Group Newspapers