Conflict Between Different Rights and Freedoms

Question 1

Conflict Between Different Rights and Freedoms Question Structure

Answer 1

1. Introduction
2. Basis of claim and procedure to get it through the door of a court
3. Has their been a breach of confidence?
4. Does this amount to interference with Convention Rights? (Article 8 then 10)
5. How the Courts will Balance Convention Rights
6. Guidelines for balancing Rights
7. Conclude

Question 2

Conflict Between Different Rights and Freedoms > 2. Basis of claim and procedure to get it through the door of a court

Answer 2

(a) Right breached is respect for Private and Family life (Art 8 ECHR), so human rights is clearly an issue.
(b) Human rights claims can only be bought about against Public Bodies (s6 HRA). Newspapers, usual defendants, are NOT public bodies, HOWEVER, claims can be bought under horizontal effect (Venables and Thompson v NGN and Douglas v Hello!)
(c) Baroness Hale (Campbell) ‘The court, as a public authority, must act in a manner compatible with both parties’ convention rights.
(d) Lord Phillips in Douglas v Hello! ‘The Courts should, insofar as it can, develop the action for breach of confidence in such a manner that it will give effect to both Article 8 and Article 10 rights.’
(e) Duty of Confidence (Established in Campbell) - law imposes a duty of confidence where, ‘a person receives information he knows, or ought to know, is fairy and reasonably to be regarded as confidential.’ Even in circumstances where there is no pre-existing relationship (Moseley)
(f) Recent developments:
- Vidal-Hall v Google Inc: Established a Tort of misuse of personal information
- PJS v NGN: Potentially established Tort of invasion of privacy

Question 3

Conflict Between Different Rights and Freedoms > 2. Basis of claim and procedure to get it through the door of a court (one word per point)

Answer 3

HUMAN RIGHTS
PUBLIC BODIES
HALE
PHILLIPS
DUTY OF CONFIDENCE
RECENT DEVELOPMENTS

Question 4

Conflict Between Different Rights and Freedoms > 3. Has their been a breach of confidence?

Answer 4

(a) Campbell threshold test (is there a reasonable expectation of privacy?) objective, reasonable person’s p.o.v.
(b) Vonn Hannover and Murray
- but Campbell
(c) No photography (Campbell)

Question 5

Conflict Between Different Rights and Freedoms > Does this amount to interference with Convention Rights? (Article 8 then 10)

Answer 5

Article 8
- 8(1) relates to privacy
- Qualified/Limited
- not ‘Necessary in democratic society’ to achieve one or more of the legitimate aims set out in article 8(2)
Article 10
- Publication will argue it has a right to freedom of expression
- Art 10(1) gives persons the right to (hold/express, receive and impart, residual freedom)
- Overlap with Art. 9 freedom of thought, conscience and religion.
- Qualified/Limited
- restricting its rights to publication is not ‘Necessary in democratic society’ to achieve one or more of the legitimate aims set out in article 10(2)

Question 6

Conflict Between Different Rights and Freedoms > 5. How the Courts will Balance Convention Rights

Answer 6

(a) where human rights are engaged, the court will apply the Bank Mellat test for proportionality
- Examples of Article 8 engaged only (Peck, Marper, Wood, R v the Commissioner of the Police of the Metroplis)
(b) Where 2 convention rights are engaged, the situation is more difficult.
- The proportionality of interfering with one, must be balanced against the proportionality of restricting another. (Baroness Hale in Campbell)
- Newspaper will argue vs what the claimant will argue

Question 7

Conflict Between Different Rights and Freedoms > 6. Guidelines for balancing Rights

Answer 7

(a) Neither right takes precedent
(b) s12(4) HRA (prevent unduly restriction of the press) Courts are to consider the extent that the information is already in the public domain and is in public interest.
(c) Proportionality test (Hale, Campbell)
- comparative importance
- justification for interference
- apply the proportionality test to both
(d) what did Campbell conclude
(e)+ Vann Hannover (no1), Murray, Van Hannover (No2), Moseley.
Decisive Factor

Question 8

Conflict Between Different Rights and Freedoms > Additional Case Law

Answer 8

Reklos v Davourlis
RocknRoll v NGN
LNS v Persons Unkown

Question 9

Conflict Between Different Rights and Freedoms > 7. Conclude

Answer 9

Bear in mind that the courts may rule that part of an article may be justified under Article 8(2) while another part may not (courts do not adopt an all or nothing approach.)