A balance-between-competing-human-rights

This essay will consider how the law in the United Kingdom has to find a balance between competing human rights. It will firstly provide an overview of Human Rights outlining the progression through the years of the Human Rights ideology before moving to look specifically at the law on privacy and family discipline and the issues faced by the courts in balancing the different Human Rights.

The term Human Rights refers to the basic rights of all individuals irrespective of nationality, race, religion, ethnicity or gender and can be considered moral rights. Moral rights are natural rights that exist from birth which are applicable to everyone and universal irrespective of which society they live in. These rights cannot be given up or taken away.

To have rights suggests that others have obligations. The state is obligated to respect, protect, or provide for that right. Failure by a state to do this would be an infringement of human rights.

In contrast to moral rights, legal rights are artificial in so much that they are created by governments, apply only to a people in a particularly distinct society, are not universal and can be given up or modified.

The principle of universal rights applicable to everyone was first recognised by a document of the United Nations, the Universal Declaration of Human Rights, which was signed on 10th December 1948 with the intention of improving the human rights worldwide.

Following the atrocities of WWII, the Council of Europe was formed in 1949 who in turn agreed a treaty, The European Convention of Human Rights in which the member states agreed to recognise essential rights of the people. All states that ratified the ECHR agreed to abide by the terms of the treaty and in turn, the treaty is enforced by member states.

The Council of Europe set up the European Court of Human Rights in 1950. This Strasbourg based court hears cases brought under the Convention from citizens of the member states after having first exhausted the domestic court system.

In the past, the court decided that the UK, in many cases brought before it, had breached the rights of claimants under the Convention.
These cases led to changes in British law such as in Malone v Metropolitan police Commissioner (1979) where the government introduced the Interception and Communications Act 1985.

The process of taking a case to Strasbourg was very costly and slow and the ECtHR took the view that it would be more effective for each country to incorporate the Convention into its domestic law. The Human Rights Act 1998 was subsequently passed and became effective from the 2 October 2000. Now a person can bring a case of human rights infringements in the UK court system instead of having to go to Strasbourg.

The HRA does not allow the courts to overrule an Act of Parliament. If a court cannot interpret or apply a particular Act of Parliament in line with the Convention, then a Declaration of Incompatibility is made. The courts and parliament then have to decide if a change of domestic law in line with the convention is necessary.

The UK has no written constitution with the belief that you can do what you want if there is no law against it. The HRA goes some way to codify individual's rights and provides obligations on others. Importantly, enforcing theses rights is now possible in the UK courts.

The HR Act 1998 lists which convention rights and protocols apply to UK law. Some rights are not included such as article 13.

The essay now moves to consider the law of privacy.

Two important parts of the Convention that often are found competing against each other is Article 8: Right to respect for private and family life and Article 10: Freedom of expression.

Article 8 states that ‘Everyone has the right to respect for his private and family life, his home and his correspondence'. Article 8 is cited when the privacy of a person is claimed to have been breached and covers a broad spectrum of complaints.

The UK has no dedicated law of privacy. Previously the courts have found, as in the case of Malone v Metropolitan Police Commissioner (1979) regarding telephone tapping by the police, that this could not be unlawful as there was no right to privacy at common law.

Instead, anyone bringing an action relating to breach of privacy would rely on the Convention rights or the English law of the right to confidence.

In the case of Prince Albert v Strange (1849) I H &TW I 21-22 the court found against the unauthorised publication of the Royal Families private art on the grounds that it invaded their privacy, as a person has the right to decide if they are made public or not.

It was decided in Coco v A N Clark (Engineers) Ltd (1969) that in order to prove a breach of confidence three elements must exist. These are that the information must necessarily be secret or confidential, that the person given the information would have been under a duty to keep it confidential and the person was in breach of that duty.

Most breach of privacy cases relating to publication or disclosure of material have to balance Articles 8 and 10 when deciding if the material should be considered confidential or whether it is in the public interest to disclose such information.

In Douglas and Others v Hello! Ltd the claimants had entered into a contract with OK! Magazine for exclusive coverage of the wedding. The rival magazine Hello! secretly took photographs during the day with the purpose of publishing them. In the ensuing court case the court of appeal found that Hello! magazine were in breach of confidence, the elements cited in Coco v A N Clark having been proved, but confirmed the nonexistence of a privacy law in England. The opinion was that the law of confidence provided for adequate remedy.

The conflicts of Article 8 and 10 were also considered in Campbell v Mirror Group Newspapers (MGN) Ltd (2002). Supermodel Naomi Campbell had claimed that she did not use drugs and by comparing herself to others in her industry that did use drugs, intended to benefit from this claim. She was then photographed leaving a narcotics anonymous meeting, the photographs were printed and she subsequently claimed her right to privacy had been breached.

Ms Campbell's lawyers accepted that the Mirror was entitled to publish the fact that she did use drugs particularly after her previous claims of being drug free but objected to the photographs and details of treatment.

The Mirrors lawyers claimed that such details were not significant and that the previous ruling by the Appeal court had achieved the right balance of respect for her private life and freedom of expression for the press.

The House of Lords disagreed and found in favour of Ms Campbell in a breach of confidence. Again, the court maintained that the right to privacy does not exist although Lord Hope of Craighead made reference to an infringement of Ms Campbell's right to privacy, which has been seen as a shift towards a development in the law towards privacy claims.

Cases involving extramarital relationships of high profile celebrities have revealed the difficulties of balancing free speech and a right to privacy. In both A V B (2001) and a case involving Lord Coe, both failed in their attempt to prevent newspapers publishing details of their affairs. In both case the courts decided that the media's freedom of expression should take preference over the right to privacy and that the courts should not act as censors.

Another area where the law is at

Prior to 1995, English law did not protect an individual's privacy and largely protected breaches of confidence only, supported by Coco v. A.N. Clark Engineers Ltd. [1969] R.P.C. 41, until the decision in Peck v. UK (2003) 36 E.H.R.R. 41.

As a result, there is no longer a need for a 'special relationship' because it was recognised in Attorney General v. Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109 that "a duty of confidence arises when confidential information comes to the knowledge of a person … with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others" and this is also supported by Campbell v. MGN Ltd [2004] UKHL 22.

























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Strathclyde Regional Council v Porcelli (1986) IRLR 134

Reed & Bull Information Systems v Stedman (1999) IRLR 299

Moonsar v Fiveways Express Transport Ltd (2005) IRLR 9

Chief Constable of the Lincolnshire Constabulary v Stubbs and Others (1999) IRLR 81 EAT

Balgobin and Francis v London Borough of Tower Hamlets (1987) IRLR 401

Waters v Commissioner of Police of the Metropolis (2000) IRLR 720 HL

Insitu Cleaning Co Ltd v Head (1994) IRLR 4 EAT

Arthur, Raymond and Howells, Carol, The Open University (2008), ‘Unit 16 Civil Sanctions', Block 5 Sanctions, W100 Rules, rights and justice, Milton Keynes, The Open University, pp. 7-32.

Cuthbert, Leslie, The Open University (2008), ‘Unit 17 Criminal Sanctions ', Block 5 Sanctions, W100 Rules, rights and justice, Milton Keynes, The Open University, pp. 35-66.

Legge, Debbie and Zambellas, Amanda The Open University (2008), ‘Unit 18 Discipline in organisations: sexual harassment', Block 5 Sanctions, W100 Rules, rights and justice, Milton Keynes, The Open University, pp. 69-95.

The Open University (2008) ‘Unit 17' W100 DVD, W100 Sanctions, Milton Keynes, The Open University (DVD).

Reading 24-44, pp108-214, Reader 2, W100 Rules, rights and justice, Milton Keynes, The Open University.