Chapter 13: Indirect horizontal effect Flashcards
- Introduction
The HRA 1998 primarily operates in a vertical direction to provide protection for individuals against public authorities that interfere with their Convention rights. However, the HRA is not
limited to its vertical application, because it can also have an influence over the legal
determination of claims between private individuals and private organisations with legal
personality
Indirect horizontal effect
The ‘indirect horizontal effect’ of the Act arises from s 6(3)(a), HRA which recognises that courts and tribunals are public authorities and are therefore obliged, in accordance with s 6(1) HRA, to act compatibility with the Convention. As a result, courts are under a duty to apply and develop the common law in accordance with the demands of the Convention.
Key case: Douglas v Hello [2001] QB 967
In this leading case, Keene LJ recognised the indirect horizontal effect. In considering the article 8 rights of the applicant and the article 10 rights of the defendant magazine, Keene LJ stated:
The courts as a public authority cannot act in a way which is incompatible with a convention
right: s. 6(1). That arguably includes their activity in interpreting and developing the common law, even where no public authority is a party to the litigation.
1.1 Cause of action
The HRA did not create a new, free-standing cause of action between private individuals. If a
private party wishes to invoke a Convention right in a dispute with another private party, there must be a pre-existing cause of action against the other private party upon which to ‘hang’ the Convention right.
Wainwright v Home Office [2003] UKHL 53
The law lords held that there was no general common law right to privacy in domestic law. They pointed to the limited protection for invasions of privacy committed by private individuals, provided by the long-established action of breach of confidence, which affords a remedy for the unauthorised dissemination of personal information.
Coco v A N Clark (Engineers) Ltd [1968] FSR 415
However, they emphasised that this cause of action required there to be a prior relationship of confidence between the parties (Coco v A N Clark (Engineers) Ltd [1968] FSR 415).
The common law was developed, however, from that point.
Key case: Campbell v MGN [2004] 2 A.C. 457
In this case, the Court of Appeal had dismissed Naomi Campbell’s claim against the Mirror Group for breach of confidence, as it found there to be no obligation of confidentiality between the two
private parties. The House of Lords overturned this finding, however, and established a new cause of action.
Lord Nicholls
Characterised this as a new (tortious) action of ‘misuse of private information’.
Lord Nicholls new judgement
[…] This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship […] the time has come to recognise that the values enshrined in Articles 8 and 10 are now part of the cause of action for breach of confidence.
- Misuse of private information
The House of Lords identified two elements necessary for determining whether there has been misuse of private information, as now developed under the HRA:
(a) Whether article 8 is engaged in the first place depends solely on whether the applicant has a
‘reasonable expectation of privacy’
(b) If article 8 is engaged, the next stage of the inquiry is to conduct a balancing exercise
between the competing rights in articles 8 and 10 and consider whether the publication was necessary. (Note that the media enjoy article 10 rights to freedom of expression by definition.)
2.1 ‘Reasonable expectation of privacy’
Obviously private
Lord Hope in Campbell suggested that the test for whether there is a reasonable expectation of privacy is firstly to ask whether the information is obviously private. If this is the case, the situation will be one in which the person affected can reasonably expect his or her privacy to be respected.
Disclosure Offensive.
If, however, the information is not obviously private, the courts will then consider whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, would find the disclosure offensive. (Lord Nicholls, however, dissented on using the offensiveness test in his judgment.)
Further Guidance given by Lord Phillips
Further guidance was given by Lord Phillips. On determining whether there was a reasonable expectation of privacy in respect of the material in Douglas v Hello! (No 3) [2005] EWCA Civ 595,
he asked:
What is the nature of “private information”? It seems to us that it must include information
that is personal to the person who possesses it and that he does not intend shall be imparted to the general public. The nature of the information, or the form in which it is kept, may suffice to make it plain that the information satisfies these criteria
Murray v Express Newspapers [2009] Ch 481
Discussed further below), the Court of Appeal held that the question of whether or not there is a reasonable expectation of privacy in relation to the relevant information:
Broad One
[…] Is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of
consent and whether it was known or could be inferred, the effect on the claimant and the
circumstances in which and the purposes for which the information came into the hands of the publisher.
Court of Appeal in Browne v Associated Newspapers Ltd [2008] QB 103
Noted that there will
be no reasonable expectation of privacy in respect of information that is in the public domain. Whether information is in the public domain is a matter of fact and degree for determination in each case depending on its specific circumstances.
McKennitt v Ash [2006] EWCA Civ 1714
Waiving Reasonable Expectation of Privacy
That a person can choose to waive their reasonable expectation of privacy by placing the information in the public domain. However, the
fact that a person has revealed some aspects of their personal life does not mean that every
aspect of their private life is open to scrutiny
Differing views of the scope of article 8
In the horizontal context arose between the House of Lords
and the ECtHR. In Campbell, Baroness Hale suggested that a photograph taken in a public place of a routine act, such as shopping, was not essentially private and would therefore not engage Article 8
Von Hannover v Germany (No. 1) (2005) 40 EHRR 1
The ECtHR held that the publication of photographs showing Princess Caroline going about her daily life in public places, which included
her shopping and leaving a restaurant, depicted her in activities of a purely private nature, thereby engaging the protection of article 8.
2.1.1 Murray
In Murray, the Court of Appeal sought to reconcile the different approaches in Campbell and Von Hannover (No 1).
High Court
The case of Murray arose from covert photographs taken of Dr and Mrs Murray (more commonly known as JK Rowling) with their 19-month-old son, David, when they were out walking on a public street. They issued proceedings on David’s behalf for an infringement of his privacy contrary to Article 8. The High Court rejected the claim on the basis that David did not enjoy a reasonable expectation of privacy from photographs taken in a public place.
Reasonable expectation of privacy is a broad concept
The Court of Appeal accepted that the mere taking of a photograph of a child in a public place would not engage the article in all situations. However, the court held that reasonable expectation of privacy is a broad concept, requiring consideration of all the circumstances. In
finding that David did have a reasonable expectation of privacy
Court of Appeal cited a
series of factors
- The judge’s reasoning had focused too heavily on the taking of the photograph and not enough on its publication. It had been taken in a clandestine way to sell for publication in
circumstances where the parents had not been asked for their consent. - The judge had not sufficiently recognised that the action was brought on behalf of a child.
- It was of particular significance that David’s parents had taken great care to keep him out of the public eye so that he could live a normal life.
Axon v Ministry of Defence [2016] EWHC 787
The applicant sued the Ministry of Defence in relation to a civil servant’s disclosure to The Sun that he had been removed from his role as a commanding officer on a Navy frigate due to bullying. He also sued the parent company of The Sun for publishing the story.
Nicol J
Held that Axon did not have a reasonable expectation of privacy as he was performing a
very public function and had imperilled the fighting effectiveness of the ship. Moreover, the officers on the ship, who had complained about his bullying, knew or would have been able to
have inferred why he had been removed from the ship.
Judge’s treatment
It is notable that the judge treated the effect of Axon’s behaviour on the fighting effectiveness of the ship as being relevant to the question of whether there was a reasonable expectation of privacy in the first place, rather than confining it to the second stage balancing exercise (for
which, see below).
Re JR38’s Application [2015] UKSC 42
The majority in the Supreme Court found that the
applicant (who was 14 years old) did not have a reasonable expectation of privacy in relation to photographs published in two newspapers showing that he had been involved in serious rioting in
Northern Ireland.
Re JR38’s Application [2015] UKSC 42
The photos were taken from CCTV images and used as part of a police campaign designed to identify individuals and to discourage further rioting. The minority considered that article 8 had been engaged, given the applicant’s age, but that the interference with this right was justified in the circumstances.
2.2 The balancing of articles 8 and 10
When an applicant seeks to protect their privacy in a case of misuse of private information, the media will often argue that this interferes with its right to publish the information, which is protected as a form of expression under article 10.
2.2 The balancing of articles 8 and 10
Accordingly, if an applicant can demonstrate a reasonable expectation of privacy so as to
engage article 8, the next stage of the inquiry is to conduct a balancing exercise between the respective rights under articles 8 and 10, and to consider, ultimately, whether the publication was necessary. When the courts are balancing these competing Convention rights, both parties are
required to justify the interference they propose to make with the other party’s right.
Key case: Von Hannover v Germany (No. 1) (2005) 40 EHRR 1
In this case, the ECtHR set out some guidance concerning the balancing assessment: The decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.
Key case: Von Hannover v Germany (No. 1) (2005) 40 EHRR 1
On the facts of this case, the applicant, Princess Caroline of Monaco, had sought injunctions from the domestic courts that would prevent the publication of pictures of her and her family in the German media, arguing that this violated their article 8 rights
German Courts
The German courts had consistently taken the view that, as a public figure of note, she should tolerate this level of press interest and intrusion. She argued, in contrast, that such a situation should only apply when she was carrying out official duties and that German law was at fault for
not providing legal mechanisms by which people like her might protect themselves.
Scope of her private life
The ECtHR found that there had been a breach of the applicant’s article 8 rights. It found that the
publication of the pictures did not contribute to a debate of general interest. They depicted the applicant within the scope of her private life.
Necessary Protection
Thus, the court held that there may be positive obligations on the state, inherent in an effective respect for private or family life, to provide the necessary protection against such intrusions.
2.2.1 Further cases on the balancing exercise
Lord Steyn in Re S (a child) [2004] UKHL 47
Domestically, further guidance on the balance between articles 8 and 10, was provided by Lord
Steyn in Re S (a child) [2004] UKHL 47. S was an eight-year-old, whose mother was charged with the murder of S’s brother. A number of national newspapers wished to publish the names and photographs of S’s parents and of the deceased child (without referring to S).
Lord Steyn stated in
relation to the interplay between the competing Convention rights that:
First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must
be applied to each.
House of Lords
Considered that the interference with article 8 was not of the same order when
compared with cases of juveniles, who were directly involved in criminal trials. It also considered that the principle of open justice was fundamental and, in order for justice to be open, the press
should be able to report fully and freely on matters arising. It was therefore held that the balance came down in favour of article 10 in this instance.
Key case: Von Hannover v Germany (No. 2) [2012] 55 EHRR 15
In a more recent case brought by Princess Caroline of Monaco, the ECtHR provided guidance on how domestic courts should balance the two articles. This further case arose after the applicant and her husband had brought proceedings in the German courts seeking an injunction preventing
publication of three photographs.
Key case: Von Hannover v Germany (No. 2) [2012] 55 EHRR 15
The first showed the applicants out for a walk on a skiing holiday and was accompanied by an article concerning the ill-health of Caroline’s father, Prince Rainier. The two further photographs also showed the applicants on holiday and were respectively accompanied by articles detailing how happy they were.
Key case: Von Hannover v Germany (No. 2) [2012] 55 EHRR 15
The German national courts granted an injunction to prevent the publication of the latter two photographs on the basis that they were wholly in the sphere of private life and satisfied nothing but the curiosity of the general public. When considering the first photograph in the context of the article, which mentioned the ill-health of Prince Rainier of Monaco, the national courts refused to grant an injunction on the basis that the subject matter was of general public interest on which the press was entitled to report.
Grand Chamber in Strasbourg
Found that Germany had not failed in its obligation to respect the applicants’ article 8 rights: They had carefully balanced the right to freedom of expression against the right to respect for private life.
Von Hannover (No. 1)
It was noted that the German courts had taken into account the case of Von Hannover (No. 1) and given due consideration to whether the publication contributed to matters of public interest. The assessment by the German courts of the informative value of the photograph, in the light of the
accompanying article, could not be considered unreasonable. The Grand Chamber used this
opportunity to affirm that articles 8 and 10 are of equal value.
Five relevant criteria
which contracting states should consider when balancing the rights:
- Whether the information contributes to a debate of general interest
- How well-known the person concerned is and the subject matter of the report
- The prior conduct of the individual concerned
- The form and consequences of the publication
- The circumstances in which the photos were taken, in particular whether the person
photographed gave their consent
HRH Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776
Concerned extracts from
Prince Charles’ journal. The claimant contended that the journal set out private and personal thoughts; the defendant argued that it was not confidential as the contents were of a political nature and related to the claimant’s public life, a matter legitimately within the public interest. The court concluded that the claimant had a ‘reasonable expectation of privacy’ in respect of the
journal, and that, in balancing the competing interests, there was a strong public interest in
preserving its confidentiality
Mosley v News of the World [2008] EWHC 1777
The newspaper published a front-page story alleging that Max Mosley, then President of the FIA (the governing body for Formula One), had taken part in a ‘sado-masochistic orgy’ with five prostitutes which had a ‘Nazi theme’. Mosley did
not dispute that the sexual activities had taken place but contested the alleged Nazi theme.
Eady J balanced the
competing interests
He identified that there was a public interest in the secret filming and subsequent publication of any behaviour which may have involved ‘parodying Holocaust horror’,
particularly given Mosley’s public role. However, he did not find any evidence of a Nazi theme and noted that the treatment of the claimant was unsatisfactory, given the gravity of the allegations and the devastating impact of the publication on him.
- Injunctions
A significant element of the development of this area of law has been the use of injunctions to attempt to restrain publication in some cases. Perhaps the most notorious example related to the
controversy over the activities of the company, Trafigura Ltd.
Interim Injunction in 2009
Preventing the publication of an internal company
report which had concluded that its disposal of oil waste in the Ivory Coast would cause injury to local people. The injunction also prevented newspapers discussing the existence of the injunction
itself, making it a so-called ‘super-injunction’
(RJW v Guardian News and Media Limited [2009] EWHC 2540 (QB))
An MP became aware of the issue and tabled a question on the topic in the House of Commons, which was then listed on the Order Paper for that day. When the solicitors for Trafigura became aware of this, they attempted to amend the injunction, but The Guardian newspaper had already reported the existence of the super-injunction on its website.
The super-injunction, which was considered in the Trafigura case (RJW v Guardian News and Media Limited [2009] EWHC 254, (QB)) was seen to be an attempt to restrict reporting of parliamentary proceedings, and therefore a restriction on the transparency and openness which are required in a system governed by the rule of law
3.1 Use of injunctions
In 2011, the law on privacy was in the spotlight as a result of a number of celebrities obtaining
super-injunctions. Against this background, in ETK v News Group Newspapers [2011] EWCA Civ 439, the Court of Appeal took the notable step of stating that the potentially adverse impact of publication of a parent’s misdeeds upon the lives of their children could, in effect, enhance the
claimant’s case for an injunction. This clearly provides a significant level of protection for children, but it also allows the claimant to bolster their case precisely because of their own wrongdoing.
Mosley v UK [2011] ECHR 774
The applicant, who had successfully brought a claim for misuse of private information in the domestic courts (see above), argued before the ECtHR that article 8 imposed a positive obligation on contracting states to enact a legal measure that required
individuals to receive notification from the press in advance of publication of information that interfered with their private lives.
Chilling Effect on the Right of Freedom of Expression
The ECtHR dismissed this argument. In reaching its conclusion, Strasbourg found that the introduction of such a requirement would have a chilling effect on the right to freedom of expression guaranteed by article 10 and expressed doubts as to its effectiveness. In addition, it
noted that a wide margin of appreciation is conceded to states in ensuring compliance with positive obligations under article 8, which have an impact on free speech
May 2016, The Supreme Court
Was able to make a number of very significant points about the use of injunctions to restrain information being disclosed about the private and sexual lives of celebrities in the case of PJS v News Group Newspapers Ltd [2016] UKSC 26. It was argued by News Group that so many people had already been able to find out who the celebrity was via the
internet that injuncting this information was effectively pointless
However, in upholding the injunction, Lord Mance made the clear point that:
[…] the starting point is that (i) there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time, (ii) any such disclosure or publication will on the face of it constitute the tort of invasion of privacy, (iii) repetition of such a disclosure or publication on further occasions is capable of constituting a further tort of invasion of privacy, even in relation to persons to whom disclosure or publication was previously made - especially
if it occurs in a different medium.
4 Summary
Indirect Horizontal Effect
- Section 6(3)(a) HRA has brought about what is known as the ‘indirect horizontal effect’ of the HRA. Under that provision, courts and tribunals are identified as public authorities and therefore they must act in accordance with s 6(1) and make decisions that are compatible with the Convention, even if both parties are private individuals
Pre-existing cause of action
If a private party wishes to invoke a Convention right against another private party there must be a pre-existing cause of action against the other private party upon which to ‘hang’ the Convention right. A commonplace cause of action which results in the engagement of article 8
is the tort of the misuse of private information (Campbell).
Campbell
In Campbell, the House of Lords identified two elements necessary for determining whether there has been misuse of private information, as now developed under the HRA:
- The applicant must have a ‘reasonable expectation of privacy’.
- The court will conduct a balancing exercise between the competing interests of the right to privacy (article 8) and the right to the freedom of expression/to publish (article 10).
