The European Convention of Human Rights

It has also its own Court of Human Rights in Strasbourg. [1] 

In 1949, 25 European states formed a body known as the council of Europe. The Convention was drafted with a significant input from English lawyers. In 1951 the Convention ratified by the United Kingdom and recognized the individual of petition in 1966. But the positive guarantees of ‘fundamental Rights’ contains the international convention have been found by the European Court Of Human Rights (ECtHR).under the dualist principle of English law, International treaties ratified by the UK Government, such as Convention did not have legal effect domestically because they had not been incorporated into domestic law by Act of Parliament. [2] 

However before the Human Rights Act came into force it was possible for Convention principles to an impact on domestic law either indirectly or directly. The Convention had an increasing impact on the development of English law over the last five decades. Finding of violation against the UK have led to several changes being made to primary legislation. [3] In the case of: Sunday Times v UK (NO,1) [4] the Strasbourg courts judgement was an important factor leading to the reform of the law by the Contempt of Court Act 1981.The violation of the right to respect for private life in Article 8 of ECHR found in the telephone tapping case: Malone v UK. [5] When Malone’s case finally reached the ECtHR court found no difficulty in relation to Art-8’s concepts of private life and correspondence. Court found that, the Metropolitan Police Commissioner’s (MPC) interference had been in pursuit of a legitimate under Article 8(2) objective namely the prevention of crime. However the question arose whether the commissioner’s interference with this right had been exercised according to law. Which find out in Sunday times case that ‘‘law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life…….’’ [6] 

On this occasion, the Government amended domestic law accordingly the Interception of Communications Act 1985 to regulate phone tapping. This provisions now contained in the Regulation of Investigatory Power Act 2000.

When UK signed the Convention in 1950 and accepted the obligation of Art.1 of the convention that, “secure for everyone with in its jurisdiction" that means it ensuring that the law under the process of administration and government conducted in a way that is compatible with the convention. The convention is based on the rule of law. An absence of a clear rule makes everything uncertain. In Malone V UK [7] the court of Human Right (HR) held that in absence of the effective regal regulation of telephone tapping was a violation of Article 8. as a result the Interception of Communication Act 1985 was enacted. But in the beginning of the century in Halford V UK (1997) [8] it became clear that the new law was inadequate and unable to create effective legal control.

Some adverse judgement may require the UK to change the terms of an Act of Parliament which is regulating some activity. For example the on Sexual offences Act 1956 such as buggery and indency between males, was reformed by the Sexual Offences (amendment) Act 2003. It was the response of the decisions of court of HR in ADT V UK, [9] which held that the previous law of Sexual offence Act 1956 failed to secure the right to private life of homosexual men.

In according to administrative practices the convention has had some of its most significant effects in the United Kingdom. For example, in Smith and Grady V UK [10] in this case homosexual in the military was band by the British Armed Forced. But this practice of the military was ended as a result of an adverse decision of the court of Human Rights.

However, when the Convention right incorporate with Human Rights laws subject to any derogations or restrictions under some articles such as, Right to life under Article 2 ,Prohibition of torture under Article 3,Right to respect for private and family life under Article 8, Freedom of thought, conscience and religion under Article 7 and Freedom of expression under article 10.According to the given question,

Right to Privacy: Article 8

“The right to privacy may refer to the protection that is personal to any person such as, the revelation of personal information or family secrets or any other information that one would prefer to keep either to on self or within a particular group of associates. In domestic law, the laws of confidentiality, Data Protection and Defamation seek to protect unwanted disclouser of information that are either personal to that particular individual or otherwise damaging to his reputation or honour." [11] 

However there have such laws which are bounded by technical limitation between privacy and confidentiality. In R v BCC (Broadcasting Complaints Commission) ex parte Granada Television [12] in that case two parents of murdered children complained to the BCC that Granada TV broadcasting their children cases without their prior permission or notification. Under sec.143 of the Broadcasting Act 1990 the BCC have a duty to consider upon complaints of unwarranted infringements of privacy. The applicants claim that ,as the death had been reported publicly in the past so it could not form the basis of an infringements of privacy under sec.143.The BCC upheld the complaints not forewarning the parents this is an unwarranted infringement. The principle of this case informed, development of the Law of Confidentiality under H R A 1998.

Article 8 of the European Convention of Human Rights provides,

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

According to art 8(1) it is clearly made known that, Art.8 covers an individual right to family life, his home and correspondence. Nevertheless art.8 is clearly wide enough relating the privacy issues to protecting individual personal information. In identifying of the applicant interest court must decide whether it falls with in the four nominated interest: private life, family life, home or correspondence.

Article8 is qualified right. In order to be justified, however interference by the state with a person art.8 right must be justified by one of the exceptions detailed in article 8(2) and must meet the general requirements of justification in accordance with law.

The ECtHR given a broad interpretation of the term of ‘private life’ in Niemietz v Germany [13] in that case it goes further than a right to privacy in the strict sense of control over personal information and it is also linked with notions of personal sovereignty and development. [14] Further the court said that Article 8 applied to individual majority of people have a remarkable opportunity of developing relationships with the outside world. Accordingly, in the area of secret surveillance the court has found a violation of the right to private life in cases not only the act was committed in the applicants home [15] but also carried out on business premises. The European court in Halford v United Kingdom [16] held that, an individual entitled to private telephone conversation on work premises. Article 8 also protect a person’s physical and moral integrity. In X and Y v Netherlands [17] it was held that, a states owes appositive duty to protect those interests from attack which is related under Art.3 of ECHR, prohibits the subjection of individuals to torture and other form of ill treatment. Also this article has a horizontal effect by imposing a duty on the state safeguard the rights of the applicant.

The right to private life art.8 also includes right to private Sexual life as one of the most intimate aspects of private life as guaranteed by the convention in the case of: Dudgeon v United Kingdom [18] in that case the court also held that, some regulation and inequality of treatment might be justified with respect to homosexuality. Again the court satisfied that the legitimate aims under Art.8(2)-‘the protection of the rights and freedoms of others and the protection of morals.’ The view of the court’s was some degree of regulation of male homosexual conduct, by means of the criminal law, could be justified and accepted that in so far the applicant was prevented from having sexual relations with males under 21 years of age any restriction was justified as being necessary for the protection of the rights of others. As with the regulation of homosexuality, the convention rights of transsexuals have been raised before the European Court on a number of occasions. In Rees V UK, [19] the Court held that there had been no violation of the Convention when the applicant’s request to register his new sex was refused by the domestic authorities; the right to respect for private life did not include a positive obligation on a state to give individuals the unconditional right to label the sexual identity of their choice. The court also held that the right to marry under Article 12 referred to a right between persons of the opposite biological sex; that such a restriction did not have the effect of destroying the very essence of the right. [20] The European Court has also dealt with cases under Article 8 which have raised issues about the right to life and the right to self-determination. In Pretty V UK [21] 

The applicant argued that there had been a violation of her right to respect for private and family life when her husband had been refused permission to end her life. The court held that the notion of personal independence was an important principle underlying the interpretation of Article 8 and that the ability to conduct one’s life in a manner of one’s choosing might also include the opportunity to trail activities supposed to be of a physically or morally harmful or dangerous nature for the individual concerned. The right to private life includes the right to obtain one’s right to personal identity. In the case Jaggi v Switzerland [22] it was held that there had been a violation of Article 8 when the applicant had been refused permission to have DNA carried out on a dead person with a view of discovering whether that the person was his biological father. The European Court has accepted that person’s name concerns a person’s private life and protected under Article 8.

The right to respect of family life is specifically protected by both Article 8 and Article 12 of the convention: the latter article providing that men and women of marriageable age have been right to marry and found a family, according to the national laws governing the exercise of that right. In the case of Marckx v Belgium, [23] it was established that, the Article 8 and 12 do not just apply to the traditional idea of families based on marriage, but also extend to other relationship. In Goodwin v UK [24] it was held that the right to family life was engaged in respect of the claimant’s relationship with an unknown sperm donor.

However, not all interference with a family relationship will amount to a breach of Article 8, requiring justification under Article 8(2) of the convention. For Example, in the case of Abdulaziz, Cabales and Balkandali v UK [25] there was no violation of Article 8 when the immigration authorities refused to allow the applicants foreign husband to enter the country. Nevertheless, the court found a violation of Article 8 in conjunction with Article 14 of the convention because the applicants had been discriminated against on grounds of their gender. On the other hand, the deportation of an individual, which interferes with his or her enjoyment of private and family life, needs to justified within Article 8 and must, therefore, represent a legitimate and proportionate act on behalf of the state. [26] 

According to Mentes v Turkey [27] this case law addressing the meaning of the term “Home" the term may extended to a professional persons office, although a states entitlement to interfere under Art.8(2) “might well be more far reaching where professional or business activities or premises were involved than would otherwise be the case" (Niemietz v Germany) [28] . The terms correspondence has been broadly defined to cover telephone conversation as well as written correspondence as well as the new forms of E-mail. (Klass v Germany) [29] The court found a violation of Art.8 and Art.6 in Silver v UK [30] where a number of prison regulations interfering with the prisoner right of correspondence were declared in violation of Art 6 and 8 on the basis that, they were not sufficiently accessible in accordance with law.

Article 10 of the European Convention For the protection of Human Rights provides that

“1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

In Handyshire v United Kingdom, [31] both the European and domestic courts have recognized the fundamental importance of the freedom of expression in democratic society. Art 10 is generally concerned primarily with the right of the individual to be free from restrictions on their freedom of expression and does not provide the general right of freedom of information. [32] However in the case of McCarten Turkington Breen v Times [33] 

The courts emphasized the importance of the right protected by art 10 ‘which constitutes one of the basic conditions for its progress and for the development of every man’.

Article 10(1) protects both the substance has place of the ideas and information which they are conveyed. The concept of expression covers words, pictures, images and actions intended to express an idea or to present information(Stevens v U.K) [34] .The forms of expression it also include, political, journalistic, artistic, and commercial. According to, Thorgeirson v Iceland [35] , in practice the ECtHR gives rather stronger protection to political and journalistic expression than other forms of expression, though the ECtHR has expressly disavowed any theoretical basis for the distinction. [36] 

However according to art 10(2) it needs to identified that by case law, free expression, mainly by way of the mass media, is an influential tool, carrying special duties and responsibilities. It is essential to protect the right to free speech because its power to promote democracy. Also it is important to recognize that free speech can equally be used to inflame violence and intrude on individual privacy and safety. [37] The courts case law is take an attempt to strike the proper balance between these competing interests [38] 

In Sunday time v U.K [39] the European court stressed in the principle outlined of Handyside case as when any interference occurred based on sufficient reason there must be public interest taken into account aspect from the case. Accordingly the court is particularly observant in controlling any form of prior restraint. Therefore in Observer and Guardian v U.K [40] , the court stated that although art 10 did not prohibit prior restraint, the dangers inherent in such are that they call for the most careful scrutiny on the part of the court, especially as far as the press is concerned. Here the fact that the information is in the public interest therefore it will make more difficult for the respondent state to justify any interference with in art 10(2). This has involved with the court in deciding what information is indeed regarding public interest [41] 

The European court has placed special significance on the ability of free speech to communicate information and ideas to the public interest. The situation is in which a restriction may be justifiable including the protecting the public interest such as national security, territorial integrity, freedom from crime and disorder, health and morality and the judiciary impartiality and also other individual rights, such as right to privacy or reputation. The margin of appreciation allowed to the contracting state in restricting freedom of expression will vary depending on the purpose and nature of the limitation. There are also have some exception regarding freedom of expression. Art. 10 contain substantial internal limits on the right to freedom of expression. Art 10(2) provides that, it does not prevent from state requiring the licensing of broadcasting and a significant list of exception is specified in Art 10(2). Despite the apparently broad reach of Art 10(2), it is evident from the case law that the ECtHR will require a strong justification for interfering with the right to freedom of expression. In Wingrove v U.K [42] the ECtHR made it clear that, there is limited scope under Art10(2) for restriction on political speech or on debate of public interest. However the role of Art10(2) also considered by the House Of Lords(HL) in R v Shayler [43] where it was argued that, the Official Secrets Act 1989 was inconsistent with Article 10. The HL accepted that, the legislation interfered with freedom of expression, it observed that Art10(1) is qualified right by the Art10(2) and the restriction imposed by the Official Secrets Act were proportionate and pursued a legitimate aim. [44] 

Considering the right to respect for private and family life (Article 8) and freedom of expression (Article10) both of them are qualified rights. Qualified rights are those which oblige a balance between the rights of the individual and the needs of the wider community or state interest. Interference with qualified rights is acceptable only if: There is a clear legal basis for the interference with the qualified rights that people can find out about and understand. The action or interference seeks to attain a legitimate aim. Legitimate aims are set out in each article containing a qualified right and they vary from article to article. They include, for example, the interests of national security, the prevention of disorder or crime, and public safety. Any interference with one of the rights enclosed in Articles 8–11 must fall under one of the permitted aims set out in the relevant article. And the action is necessary in a democratic society. This means that the action or interference must be in response to ‘a extreme social need’, and must be no greater than that essential to deal with the social need. [45] 

However the press intrusion into private life has dominated arguments surrounding the domestic law of privacy there is limited case law under European Convention on Human Rights in these areas. Article 8 of the convention guaranteeing the right to private and family life in addition that right is qualified with in the Art8(2),most notably the rights of others to freedom of expression Until recently there was little guidance to be gained to resolved that conflict.

The United Kingdom cases decided in Strasbourg in Winer v UK [46] concerned there was a publication of a book entitled Inside BOSS. The book contained intimate references to the applicant’s private life and his relationship with his former wife. The applicant submitted that some of the allegations in the book were true, of others he could not prove their untruth and others were false, but that all were inextricably interwoven so as to constitute a gross invasion of his and his former wife’s privacy, a matter not generally protected under English law.

In its observations to the Commission the UK had denied that the English law inadequately protected a right to privacy. The government pointed to the balance which must be struck between the individual’s right to privacy and other individual’s right to freedom of expression. Here the European commission held that, an individual was allowed to sue with respect to untrue statement. The law of defamation provided him with some protection of his Art8 rights. Thus in Barclays v United Kingdom [47] the commission accepted that, the applicants had a right to remedy in respect of the filming of their family home by Television reporters. But in Earl Spencer* v U.K [48] here the court rejected the claim because the applicant had failed to exhaust all effective domestic remedies by bringing a claim in the law of confidentiality. It seems now clear that even though the convention does not require a specific remedy in every case, the development of privacy remedies in respect of press intrusion is required in appropriate case.

By the passing of Human Rights Act 1998 has provided a direct opportunity for those whose privacy has been invaded by the press to seek a legal remedy for such interference. This section will firstly consider the relevant case law of the European Union court in its field. After then examine by the domestic law that, how it struck a balance between press freedom and individual privacy

The principle dilemma facing the courts is how to balance the individual’s right to private life under Art 8 and with the right of the press freedom and freedom of expression under Art 10, to publish information to the public. There was some authority before the Human Rights Act to the effect that the disclouser of details of the private lives of public celebrities was in the public interest. In Woodward v Hutchins [49] it was held that, there was a public interest in the disclosure of the private sexual activities of a number of pop celebrities. That decision, which it should be noted was delivered at an interlocutory stage, was viewed with a good deal of reservation, assuming as that public celebrities are seen as role models and that the public has a genuine interest in the majority of their activities.

In A v B plc & Another [50] the High Court (HC) upheld the right to privacy of a premier division footballer over a “kiss & tell" story by two women on the grounds that there was no public interest in the story. However this was overturned by the Court of Appeal [51] , where Lord Woolf CJ commented on the balancing of Art.10 with Art.8 saying, “That was a marital factor situation where two people shared a sexual relationship outside the marriage. So if one exercised his or her Art.10 rights that must impact on the others right to maintain confidentially (Art.8). Here the information might relate where there was a sexual relationship between two parties and of them disclose to the media without the consent of other party. Here the main conflict between one person’s right to privacy and others right to freedom of expression. This situation where the parties were not married, the confidence was a shared confidence. Which only one of the parties wished to preserve did not extinguish the other party’s right to have the confidence respected, but it did not undermined the right. While recognising the special status of a lawful marriage under law, the courts for the present purposes had to recognised and give appropriate weight to the extensive range of relationship which now existed. Obviously the more stable the relationship the greater would be the significance attached to it". This statement is clearly directed at the moral issues of sexual relationships outside the marriage that sways the balance in favour of freedom of speech. However this still does not make it clear when one article should prevail over the other. [52] In such circumstances the public had an understandable and so a legitimate interest in being told the information. The courts should not act as censors or arbiters of taste merely because the publication had given a more lurid account of the details than the court found acceptable. [53] 

This approach also continued in Theakston v MGN. [54] Here the claimant was a well known television presenter, had visited a brothel and had photographs taken of him. The defendants intended to publish those photographs along with a describing article, and he sought a temporary injunction to stop the photographs and the article. Although the court granted the injunction regard to the photograph but it refused to grant an order with respect to the article. The court held that there was a public interest in the story the claimant was a well known celebrity who served a role model for young people and who had regularly used the newspapers to publicised his activities. [55] 

In Campbell v MGN Ltd. [56] , there was evidence of a shift in the balancing of those rights and the court became less tolerant of press policy in this area. Here the press was entitled to a reasonable margin of appreciation in deciding what details needed to be included in the article to give it credibility. The decisions about the publications of private matters raised issues that were not simply about presentation and editing and those decisions were thus open to review by the courts. However, the decision still recognised that public figures should expect less protection of their privacy than other individuals and that the public had a genuine interest in the private life of public figures.

The decision of the European Court of Human Rights in Von Hannover v Germany [57] is fundamentally questions both the status of celebrity privacy and the public’s right to know about their private lives. When the German court dismissed of applicants claims regarding her as a public figure then the applicant brought an application before the European Convention on Human Rights complaining that the German court infringed her private and family life under Art8. The European court held that, the publication of various photographs of her daily life fell with in the scope of her private life under Art8 and that as a result it was necessary to balance the applicant’s right against freedom of expression. Here the court found that, the photographs had been taken secretly and without her consent and made no contribute on to a debate of public interest. Moreover the general public did not have a legitimate interest about her private life. Therefore the German courts had not struck a fair balance between the competing interest of free speech and private life. [58] 

However in McKennitt v Ash [59] at paragraph 57 of the judgement Eady j stated that, “There was a important shift taking place between freedom of expression in relation to media and corresponding interest of the public to receive information. On the other hand the legitimate expectation of citizens to have their private lives protected. It was clear from the jurisprudence of the ECtHR that, even where there was a actual public interest from media publishing photographs or article, sometimes such interest have to give up to the individual citizen’s right to the efficient protection of private life.’’

In McKennit, at first instance the high court granted the injunction and also awarded the claimant damages representing the distress caused by the publication. When the defendant appealed to the Court of Appeal it was held that the judge had been correct in finding that the claimant had a reasonable expectation of privacy with respect to that information. In particular the COA rejected that claim because the singer McKennitt’s limited disclosure of her private life about the death of her fiancé sited the information in the public domain and thus opened up the whole area of her private life to interfering scrutiny. The COA also held that the judge at first instance had been correct in balancing the claimant’s private life with the defendant’s article 10 rights. In the courts view the defendant had no story to tell her own as opposed to the claimants, and accordingly the right to freedom of expression under article 10 clearly had to yield to article 8.

“The decision of McKennitt also applied in Max Mosley v News Group Newspaper Ltd. [60] In that case Justice Eady observed that, the first obstacle this needed to show a reasonable expectation of privacy, and if this could be overcome it is a matter of weighing up the competing Convention rights. When Mosley challenged the publication of his private life, under Article 8 in respect to a headline “F1 boss has sick Nazi orgy with five hookers". The defendant argued that the newspapers' right to freedom of expression should prevail due to the public interest in knowing the individual was involved in Nazi role play and, irrespective of the Nazi element, the public had a right to know as the individual was the President of the FI." [61] 

According to the Mosley case there were two key issue raised firstly, whether the information was a private matter, some information concerning individuals so trivial on so lacking in intimacy that no privacy could be said to attach it at all. And secondly, whether the information was ostensibly private and whether there was any public interest or not. Here courts have been keen to draw distinct between which the information are public interested in and information which are in the public interest. [62] 

In CC v AB the claimant, who had been having an affair with the respondent's wife, sought an injunction against the respondent to prevent him from publicising that affair. The applicant claimed that disclosing the applicant's and the wife's identity would be harmful to him and his family, and to the emotional and mental state of the woman with whom he had the relationship. The High Court, Eady J held that there was no general rule that an adulterer could never restrain the publication of matters relating to an adulterous relationship. Here the judge's view was, intimate personal relationships could fall within the protection afforded by the law of confidentiality, Applying Stephens v Avery [63] this principle, an adulterous relationship, which could attract a reasonable expectation of privacy. In this case, therefore, the applicant's article 8 rights were occupied, as was the respondent's right to freedom of expression under article 10. The court had to balance those interests in accordance with the facts and the relative merits of the parties' claims, adopting and applying the principle of proportionality. [64] 

The decision in McKennitt v Ash and CC v AB, are examples of the change in judicial direction with respect to the balance between freedom of expression and the protection of privacy. This change has been prompted by the decision of the European court in Von Hannover and achieved two principles that are always present in such cases. The first one is the relate to the privacy claims particularly with respect to sexual information. However in A v B plc Lord Woolf CJ was almost dismissive of the claimant’s right to hide his adulterous relationship on the basis of such information and relationships lay at the lower end of privacy rights. On the other hand in CC case, such information was readily accepted as private. The second principle relates to the public interest should demand the disclouser of information. In the cases before Von Hannover the public right to be informed of the misdemeanours and activities of celebrities was justified on the basis that such people were role models and that the public had a genuine and legitimate interest in receiving such information. The distinction between public officials and public celebrities and information of genuine public concern may be a sensible one to draw, even though it creates elitism with respect to the sorts of matters the public should be interested in. In the recent case HRH Prince of Wales v Associated Newspaper [65] the High Court then the Court of Appeal granted injunctions to prohibit the publication of a private diaries which included information of undoubted public and in the constitutional interest. [66] 

Although the law should not established a public right to intrude unreasonably into the private lives even in public figures, those figures could to be protected by more appropriate law. For example, in Howlett v Holding [67] an order was made under the protection of Harassment Act 1997. It was suggested that the application of laws preventing physical or mental Harassment are more appropriate in the majority of the cases. In confidentially and privacy claims the defendant would then be free to claim a wide public interest, where there is a conflict between individual privacy and freedom of expression.

The convention does not require domestic law to establish a right to privacy and in Winer v United Kingdom [68] here the ECHR concluded that because of the competing right to freedom of expression, it did not consider the absence of an actionable right to privacy under English law showed a lack of respect of the individual’s private life. However a number of cases:A v B, Campbell, Doughlas, etc it must be remembered that, they were all decided on others grounds without the help of Human Rights Act. Particularly privacy is reflected in common law and statute, although it has not been defined as a specific cause of action. The HRA introduced privacy with subject to its limitation. Now the main point is whether the freedom of speech will outweigh freedom from invasion of privacy. Both are very important aspects of constitutional rights and some cases one must suffer at the hands of other. The problem arises in deciding which one should prevail. [69] 

In R v Central Independent Television [70] case Lord Hoffman LJ said, “A right to privacy may legitimate expectation to freedom of speech. And there is no question of balancing freedom of speech against right to privacy. It is a trump card which always wins." It would appear that, the HRA might be a new weapon in the armoury of celebrities seeking protection from the Medias cameras. As the Campbell did not pursue her action in privacy although it eventually failed for breach of confidentiality the effect of the Act on privacy still uncertain. However the HRA appears to be a step forward into protecting the right to privacy and legislating existing common law protecting.