W8 - Conflict Between HR

Question 1

How are conflict claims dealt with by the courts?

Answer 1

• Absolute or limited right comes into contact with a qualified right => absolute/limited right takes priority
• breach of confidence/tort of misuse of private info (Gore v Google) or arguably tort of invasion of privacy (PJS) as ‘vehicles’ need to bring HR action in horizontal cases
• s2/3/6/7 HRA engaged (public body may be court due to horizontal effect - Thompson and Venables; Douglas v Hello)

Question 2

Private life/privacy

Answer 2

Includes:

• bodily integrity (medical treatment; suicide disclosure - Peck)
• personal autonomy (right to make decisions about how you live your life)
• sexuality
• personal information (its holding, use or disclosure- Marper; GC; Wood)

Question 3

HRA s12(4)

Answer 3

Courts must have particular regard to the right of freedom of expression

• must consider the extent to which the material is already in the public domain, whether publication would be in the public interest and any relevant privacy code

Question 4

Balancing art 8 and art 10

Answer 4

Authority on misuse of private info = Campbell
Test = whether the complainant had a reasonable expectation fo respect for her private life in the particular circumstances (objective)
Yes => need to balance art 8 and art 10
Imp factors eg impact of info being exposed (on eg medical treatment); any compelling need for the public to have this info; mental health (Mary Bell); serious risk of physical harm; how long ago the event took place

Question 5

Photographs

Answer 5

• Photos must contribute to a genuine debate of public interest
• Photos and text should be considered separately (Campbell)
• Fact that person is a public figure does not mean that they have no right of respect for their private life when in a public place (Von Hannover No 1; Campbell)
• BUT if link between photo and article close enough it may be justified
• ‘reasonable expectation of privacy’ valid even for everyday acts - esp if a child is involved (Murray) also factors incl: attributes of the claimant; nature of the activity being engaged in; place at which it happened; nature and purpose of the intrusion; absence of consent (Reklos and Davourlis); effect on the claimant; the way in which, and purposes for which, the information reached the hands of the publisher

Question 6

Public interest element

Answer 6

• courts may be more willing than prev to protect the sex lives of people in the public eye (Mosley)
• public interest in demonstrating that a public representation is false (Ferdinand)
• likely to be a media storm => too much interest => injunction may be granted (PJS)

Question 7

Super-injunctions = judges legislating?

Answer 7

• development of privacy law by the courts instead of legislation passed by P
• Committee concluded that dev of privacy law was a natural consequence of the HRA and the incorporation of the ECHR into domestic law => privacy rights were created by P

Question 8

Other exceptions to freedom of expression

Answer 8

• defamation
• breach of confidence
• misuse of private info (private if there is a ‘reasonable expectation of privacy; art 8)
• incitement to disaffection and treason (Arrowsmith)
• official secrets (Official Secrets Act 1989)
• threatening, insulting or abuse words or behaviour (Public Order Act 1986)
• incitement to racial and religious hatred (Racial and Religious Hatred Act 2006)
• Obscenity
• Communications Act 2003 (prohibits broadcasting of political adverts - prevent political debate being distorted by wealthy interests- Animal Defenders International)
• Terrorism Act 2006 (directly or indirectly inciting terror)
• Contempt of court

Question 9

Contempt of Court Act 1981

Answer 9

S1: strict liability offence (intention doesn’t matter)
S2(1): publication
S2(3), (4) and sch 1: proceedings active? Civil proceedings => para 12 and 13 apply; criminal active once an arrest is made
S2(2): substantial risk of serious prejudice? eg timing of trial, judge/jury

Question 10

Defences under CCA 1981

Answer 10

S3 – innocent publication
S4 – contemporary report – only whilst trial is going on
S5 –discussion of public affairs (AG v English –does not infringe strict liability rule if risk of prejudice is merely incidental to the discussion aka good faith)
S2(2) - substantial risk of serious prejudice? Prosecution to prove s2(2) is satisfied and s5 does not apply (so not strictly a defence)

Question 11

Common Law contempt

Answer 11

• Prosecution needs to show intention (A-G v Hislop), but active proceedings not necessary