SBAQ - CONFLICTS OF RIGHT Flashcards
Question 1
A well-known actor was photographed leaving a walk-in HIV testing clinic in Birmingham. A newspaper has published the photograph. During her career the actor has disclosed very little about her private life.
Which of the following best describes whether the actor can bring a claim in the High Court for misuse of private information arguing that her Convention rights have been infringed?
1. She cannot do so. She can only bring a claim arguing that her Convention rights have been infringed before the European Court of Human Rights.
2. She cannot do so because freedom of expression is a more important right than the right to a private life.
3. She cannot do so because English law does not recognise a tort of privacy.
4. She can do so because the right to a private life is entitled to greater protection than freedom of expression.
5. She can do so because the court in making its decision must protect her right to a private life
Option E is correct. The photograph, relating to a health condition, clearly engages Article 8, the right to a private life. In publishing the photograph the newspaper will be exercising its Article 10 right of freedom of expression. Neither right has precedence over the other, hence options B and D are wrong. Instead, the court will balance the actor’s Article 8 right with the newspaper’s Article 10 right. In this instance, following the House of Lords’ judgment in Campbell, the balance is likely to fall in favour of the actor’s Article 8 right as the newspaper does not seem to have a legitimate reason for disclosing her medical condition.
Option A is wrong as the actor will be able to bring a claim in an English court under the horizontal effect principle.
Option C is wrong. Following the Supreme Court judgment in in PJS v News Group Newspapers, it is arguable that English law does recognize a tort of privacy. In any event, under the horizontal effect principle the courts will give effect to Convention rights through developing existing causes of action compatibly with the ECHR.
Question 2
A well-known celebrity runs a healthy eating blog. A newspaper publishes an article stating that the celebrity has regular unhealthy take-aways delivered from a local restaurant. The celebrity brings an action for misuse of private information.
Which of the following best describes how the court will decide the case?
1. The court will decide the case without reference to the Article 8 rights of the celebrity as the newspaper is not a public authority.
2. As the case involves a conflict between the Article 8 rights of the celebrity and the Article 10 rights of the newspaper the court will decide whether any interference is proportionate by applying the factors set out in the Bank Mellat case.
3. As the case involves a conflict between the Article 8 rights of the celebrity and the Article 10 rights of the newspaper the court will look at the importance of the rights being claimed in the individual case and the justifications for interfering with or restricting those rights and will apply the proportionality test to each.
4. As the case involves a conflict between the Article 8 rights of the celebrity and the Article 10 rights of the newspaper the court will look at the importance of the rights being claimed in the individual case and the effect of interfering with or restricting those rights and will apply the proportionality test to each.
5. The court must have particular regard to the importance of the convention right to freedom of expression so that the Article 10 rights of the newspaper will be given more weight when assessing the balance between Article 8 and Article 10.
C is correct as it correctly sets out the approach in the case of Campbell v MGN to be adopted when there is a conflict between two qualified rights.
A is wrong. Although the celebrity could not bring a case against the newspaper for breach of their Article 8 rights directly, the court is a public authority and so must give effect to those rights when deciding the action for misuse of private information.
B is wrong as although the factors in Bank Mellat are relevant when someone brings a case against the state for breach of their convention rights, they are not relevant in cases between private individuals where their rights are in conflict.
D is wrong as it does not accurately reflect the approach the court will adopt as set out in the case of Campbell v MGN.
E is wrong as, although the court must have particular regard to the importance of the convention right to freedom of expression under s12(4) Human Rights Act, this does not mean that Article 10 will be given more weight (Campbell v MGN).
Question 3
A woman was convicted of murdering a child many years ago when she herself was a child. At the time an injunction was granted preserving her anonymity. The woman is due to come up for parole and a media outlet has applied for the injunction to be lifted so that it can give details of the woman’s identity. The woman suffers from severe mental health issues and has attempted suicide on a number of occasions. Medical evidence is submitted that if the injunction is lifted the woman is likely to attempt suicide again. There is no evidence that, should the woman’s identity be released, she would be harmed by others.
Is the media outlet likely to be successful in its application to lift the injunction preserving the woman’s anonymity?
1. Yes, because the woman is now an adult and her Article 8 rights are unlikely to continue to take priority over the media outlet’s Article 10 rights.
2. Yes, because there is no evidence that the woman would be harmed by others if her identity was released and so her rights under Article 2 and Article 3 are not engaged.
3. Yes, because, as the woman is coming up for parole and may be released, it is in the public interest that her identity is known.
4. No, because there is a real risk of serious harm or death to the woman if her identity is released and her rights under Article 2 will take priority over the media outlet’s Article 10 rights.
5. No, because there is no evidence that disclosure of the woman’s identity is necessary to protect the public.
The correct answer is D. There is a risk of serious harm or death to the woman if her identity is disclosed. Her absolute rights under Article 2 will take priority over the media outlet’s Article 10 rights. It makes no difference that the risk of harm comes from the woman herself (D v Persons Unknown; F v Persons Unknown).
A is wrong because the conflict is not between the woman’s Article 8 rights and the media’s Article 10 rights, but between the media outlet’s Article 10 rights and the woman’s rights under Article 2 (and possibly Article 3).
B is wrong because the woman’s rights under Articles 2 and 3 can be engaged when the risk of harm comes from herself (D v Persons Unknown; F v Persons Unknown).
C is wrong as, even if it was in the public interest for the woman’s identity to be known, her absolute rights under Article 2 would still take priority.
E is wrong because the media outlet would not need to produce evidence that disclosure of the woman’s identity is necessary to protect the public to be successful. However, they will be unsuccessful as the woman’s absolute rights would take priority
Question 4
A well-known actor is photographed without his knowledge while out walking in the park with his new partner. The actor has always co-operated by giving the media interviews about his acting work but has made it clear that his private life is off limits. The photograph is published on the website of a national newspaper under the section on ‘Latest Celebrity Gossip’ with the caption ‘his love-life appears to be blooming along with the flowers this Spring!’. The actor asks for the photograph to be removed but this is refused, so he brings a claim for misuse of private information.
Which of the following best describes the legal position in relation to the actor’s claim for misuse of private information?
1. As the photograph was taken in a public place the actor will have no reasonable expectation of privacy and so his Article 8 rights will not be engaged.
2. The actor may have a reasonable expectation of privacy and, as the photograph does not contribute to a debate of general interest, his Article 8 rights are likely to be given priority over the Article 10 rights of the national newspaper.
3. The actor may have a reasonable expectation of privacy but, as publication of the photograph would not be considered highly offensive to a reasonable person, the Article 10 rights of the national newspaper will be given priority over his Article 8 rights.
4. As the actor and his partner are both adults and the photograph is genuine the actor is likely to fail in his claim for misuse of private information.
5. As the actor did not consent to the photograph being taken the national newspaper will be found liable for misuse of private information.
The correct answer is B. The actor may be able to show he has a reasonable expectation of privacy as he has always made it clear that his private life is off limits. The photograph does not contribute to a debate of general interest. That factor, combined with the actor’s lack of knowledge and consent mean that the balance is likely to come down in favour of the actor’s Article 8 rights.
A is wrong as the fact that the photograph was taken in a public place does not necessarily mean that the actor will have no reasonable expectation of privacy in relation to it.
C is wrong as, although it may be relevant whether publication of the photograph would be considered highly offensive to a reasonable person, this is not the only relevant factor and may not be determinative.
D is wrong as, although the fact that the actor and his partner are adults and the photograph is genuine are likely to be relevant factors, they are not the only relevant factors.
E is wrong as lack of consent is a relevant factor but is not the only relevant factor and is unlikely to be decisive on its own.
Question 5
A man convicted of murder committed when he was an adult is released after serving his sentence. He changes his name and goes to live in a part of the country where he will not be recognised, as he does not want the community in which he is living to know about his past. Some newspapers have found out where he lives and want to publish the details.
Will the man be able to obtain an injunction stopping the newspapers from disclosing his identity and where he lives?
1. Yes, because publication of the information will violate his right to life and right to privacy.
2. Yes, because although publication of his details will not violate his right to life, it will be a disproportionate interference of his right to privacy.
3. Yes, because although publication of his details will not violate his right to privacy, it will be an interference with his absolute right to life.
4. No, because as he committed the murder as an adult, he has forfeited his right to privacy and there is no interference with his right to life.
5. No, because publication of the information will not violate his right to life nor be a disproportionate interference with his right to privacy
Option E is correct. Based on the Mary Bell case, it seems unlikely that the risk of harm to the man will reach the threshold to engage Article 2 (the right to life). As regards privacy (Article 8), freedom of expression of the press is highly important and can only be interfered with in exceptional circumstances, such as existed in the Mary Bell case. No such circumstances seem to exist here.
Options A, B and C are therefore wrong because they suggest either that there has been an interference with both Articles 2 and 8 (option A) or that one of them (options B and C) have been interfered with. As explained above it is unlikely that either has been interfered with.
Option D is wrong as individuals do not forfeit their rights because of criminal conduct.
