Public law: Conflict of HRA Article 8 and 10 Flashcards
How can claims on breach of convention brought against private bodies?
For violation of A8, newspapers are the usual defendents, are not public bodies. However, claim can be brought under the principle of horizontal effect (venables and thompson v News Group Newspapers ltd; Douglas v Hello!)
Consideration for court in the case of conflict between A8 and A10
But if there is a relevant cause of action applicable, the court as a public authroity must act in a manner compatible with both parties’ convention rights’
(campbell v Mirror)
The court should, in so far as it can, develop the action for breach of confidence in such a mammer as it will give effect to both A8 and A10. (Douglas v Hello!)
Duty of confidence test
is there a reasonaable expectation of privacy shuch as to engage Article 8 at all? Court will answer this objectively, from the p.o.v of a reasonable person in the claimant position.
Consider:
(1) Nature of material
(2) All circumstances
(3) Ordinary acts can still be private (Murray) especially when children are involved
(4) No photograph without consent, or at least no publication without consent
How to argue Article 8 taking precedence over 10?
Article 8 relates to privacy. If there has been a breach of confidence, then the clamant had a reasonable expectation of privacy and their right was breached.
Article 8 being qualified right, the claimant has to show that publication of information was not necessary in a democratic society or other legitimate aims
Same rule applies to argue for the contrary.
To what degree the breach may be amount to interference with A8 of Convention Rights?
A8 relates to privacy. If there has been a breach of confidence, then the claimant had a reasonable expectation of privacy and their right was breached
But A8 is qualified. Therefore claimant will also have to show that publication of information was not necessary in a democratic society to achieve one or more legitimate aims
To what degree the breach may be amount to interference with A10 of Convention Rights?
Under Article 10(1), a person has the right to
(1) hold/express opinion;,
(2) received and impart information
(3) Residual freedom. HRA creates positive right of freedom of expression in order that courts may:
(1) attempt to construe legislation consistently with it;
(2) make a declaration of incompatibility where Acts are incompatible, prompting Govt to change the law.
Being a qualified right, the publication will argue that restricting its right to freedom of expression is not ‘necesary in a democratic society’ to achieve one or more legitimate aims set out in A10(2)
How the courts will balance conflicting Convention rights
Where human right are engaged, the court will apply the Bank Mellat test of Proportionality
Example of legitimate aims to argue for conflict of A8 and A10
The newspaper will argue that the right to privacy can be limited under A8, for the protection of rights of othrs or the protection of morals. May aslo argue that there is a setting the record straight issue
The claimant may argue that the right to freedom of expression can be limited under A10, for the reputatoin of rights of others or to prevent the disclosure of information received in confidence.
How do court apply guidelines for balancing the rights of A8 and A10
S.12 HRA is drafted to prevented claims of breach of privacy from unduly restricting the freedom of the press. Courts must consider the extent to which the material is already in public domain
