Balancing Articles 8 and 10 Flashcards
What is Article 8 ECHR
The right to respect for private and family life
What is Article 10 ECHR
The right to freedom of expression
Basis of the claim
Right breached is Article 8, so Human Rights are an issue
HR claims can only be brought against public authorities
S.6 HRA
Newspapers are not public bodies, but a claim can be brought under horizontal effect
Douglas v Hello
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
Campbell v Mirror
Court should develop action for breach of confidence in such a manner as to give effect to both Articles
Douglas v Hello
Where was duty of confidence established?
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
Law offers protection to information even in circumstances where there is no pre-existing relationship giving rise to an enforceable duty of confidence
Mosley v News Group Newspapers
What is the test for breach of confidence?
Threshold test “Campbell”
Is there a reasonable expectation of privacy such as to engage Art 8 at all?
Objective view
Threshold test
- Nature of material
- All circumstances (e.g. location)
- Ordinary/everyday acts can still be private, especially with children (Murray v Express Newspapers)
- No photography or no publication without consent (Campbell)
Has there been an interference with convention rights?
Discuss Article 8 and 10
Article 8 ECHR
- 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
- 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)
Article 10 ECHR
- Publication will argue that it has a right to disclose information under 10(1) freedom of expression
- hold/express opinions
- receive and impart information
- 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)
How will courts balance conflicting rights?
- Where HR are engaged, court will apply Bank Millay test of proportionality
- 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)
Guidelines for balancing rights
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
Proportionality test = Baroness Hale in Campbell
- Examine comparative importance of rights in individual case
- Examine justification for interference with rights
- Apply proportionality test to both
Rule from Campbell
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
Due to specific circumstances (children) public figure in public place may still have right to respect for private life
Murray v Express Newspapers
Von Hannover
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
A public figure’s sex life will be private and disclosure of details must be linked to debate of general interest
Mosley
What is the decisive factor when balancing rights
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
Parent can object to another parent taking pictures of child in public without consent
Reklos
Injunction can be awarded to stop newspapers from printing photos which had been posted on FB
Rocknroll v News Group Newspapers
