Essay plan of conflicting articles 8 and 10
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8 v 10 rights summary doc
Conflicting rights 8 v 10
8 v 10 – are rights interfered with? Justification?
Explain the basis on which claimant will bring his claim and the basis on which the Daily Probe will seek to defend it.
Outline the approach the court will take when considering the claim
How the claimant brings the claim forward
- Claimant will argue that the article published in the newspaper breaches right to privacy. Right to respect for
private and family life is specifically protected by Article 8 ECHR, so human rights are an issue
- However, the defendant (newspaper) is not a public authority, so can claimant bring a claim against them?
- S6 HRA = is unlawful for a public authority (including a ‘court’) to act in a way which is incompatible with
Convention rights (unless giving effect to an incompatible statute) 6(3)(a) = court is a public authority
- Claimant can bring a claim due to horizontal effect principle as developed in cases Thompson and Venables v
MGN and Douglas v Hello! If the claimant shows that the publication of the information amounts to a breach
of confidence/ misuse of private information (Vidal-Hall) or invasion of privacy (PRS) (the vehicle for the
action) as In order to get case in front of court = need to be a private institution = need a cause of action
that would stand on its own and then once in front of court they can take into account the human rights
actions. Need to go to court with a tort that involves an infringement of a right. Could put it on defamation/
misuse of private information
- Vidal-Hall v Google Inc [2015] EWCA Civ 311 there is arguably a new tort of misuse of private information
however there is no new tort of an ‘invasion of privacy’
Basis of the claim – does the publication of the article amount to an unlawful interference with claimant’s
convention rights? – weighing them up against each other….
neither article 8 nor 10 prima facie takes precedence over or trumps the other
ARTICLE 8
- Rights under article 8(1) of the ECHR are qualified rights = claimant needs to show that:
- The information published was of a sufficiently ‘private’ nature to engage article 8 in the first place; and, if so,
- Publication of that information was not ‘necessary in a democratic society’ to achieve one or more of the
legitimate aims set out in article 8(2)
Was there a reasonable expectation of privacy? – does the information disclosed amount to private info?
- campbell some details are more private than others ‘For the same reason I doubt whether the brief details
of how long Miss Campbell had been undergoing treatment, and how often she attended meetings, stand
differently = don’t necessarily need all the details’
- An objective reasonable expectation test is much simpler and clearer than the test sometimes quoted from
the judgment of Gleeson CJ in the High Court of Australia in Australian Broadcasting Corporation v Lenah
Game Meats Pty Ltd (2001) 185 ALR 1 , 13, para 42, that ‘disclosure or observation would be highly offensive
to a reasonable person of ordinary sensibilities’.
Analyse the nature of the information disclosed (what will claimant argue)
- Take into account all the circumstances of the case ie attributes of the claimant, nature of activity engaged in,
, nature and purpose of the intrusion, absence of content, effect on the claimant and the circumstances in
which the info reached the hands of the publisher (Murray)
- The place where it happened
- Information about health: It has always been accepted that information about a person's health and
treatment for ill-health is both private and confidential
- Damaging to recovery I understand also that this could be deeply distressing, even damaging, to a person
whose health was still fragile
- Are they enjoying the lime light in the photo?
- If they are a celebrity, is there a different photo they could have used rather than a degrading one if it is
purely used for identification purposes?
- Nature of the information itself (health info) = vital to respect confidentiality of health data in order to
respect privacy AND the trust in the medical profession and health services in general. If confidence is lost,
people wont seek help and will therefore endanger their own health and even others if the disease is
transmissible in the community European Court of Human Rights put it in Z v Finland (1997) 25 EHRR 371 ,
405, para 95:
-
To what extent are celebrities public? Photography
- Reklos and Davourlis v Greece (Application No 1234/05) a photograph taken of a baby in a special care baby
unit by a photographer for the parents, but without their consent, violated the baby’s Article 8 rights a
parent could object to another parent taking pictures of their child in any public place without their consent
- RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) the judge granted an injunction to the new
husband of the actor, Kate Winslet, preventing publication by a newspaper of photographs which had been
posted on Facebook by a friend of his
- Murray (by his Litigation Friends) v Express Newspapers plc and another [2008] EWCA Civ 446, [2009] Ch 481
photos taken of kids whilst shopping and doing mundane activities. Was there a reasonable expectation of
privacy? Also It took account of all the circumstances of the case; these included the attributes of the
claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and
purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which,
and the purposes for which, the information reached the publisher.
- Photographs can be a bigger invasion of privacy than words In general photographs of people contain
more information than textual description. That is why they are more vivid. That is why they are worth a
thousand words
-
ARTICLE 10 – what newspaper will argue
The newspaper will argue that they are exercising its right to freedom of expression under article 10(1)
Grey areas
- In this country, unlike the United States of America, there is no over-arching, all-embracing cause of action
for ‘invasion of privacy’: see Wainwright v Home Office [2003] 3 WLR 1137 .
- There is not a clear distinction between public and private matters: “There is no bright line which can be
drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of
contrast, but there is a large area in between what is necessarily public and what is necessarily private
(campbell)
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