Lecture 15 Flashcards
INTRO-what is the 1st part of the q asking us to explain?
how it is that private parties enforcing ECHR rights against other private parties can d’s to court in thewhen the direct cause of action contained in s7 HRA 1998 only applies to vertical claims where d’s are public auth
INTRO- what might we also explain?
private parties (always celebs) & able to bring other private parties (always newspapers) which published unwanted articles & photos - to uk courts to argue breach of their article 8 echr rights bc of 2 reasons
INTRO- what are the 2 reasons?
(i) the Judiciary’s application of the concept of indirect horizontal effect (IHE) to its interpretation of section 6(3)(a) of the Human Rights Act 1998, and
(ii) the Judiciary’s creation, in the HL case of Campbell v MGN Ltd 2004, of misuse of private information (MOPI) as a sub-category of the tort of breach of confidence, for use by claimants who have no pre-existing confidential relationship with a third party (such as the commercial contract which the Douglases had with OK! Magazine)
what is the 2nd part of the q asking us to do?
explain how the court, once it finds itself with two private parties before it, both stating that the other has disproportionately breached its qualified ECHR right, attempts to balance a celebs right to respect for their private and family life under Article 8 with the media’s right to freedom of expression under Article 10 of the ECHR
what did campbell case briefly give?
Judiciar established in campbell All echr rights are of equal value & courts have to perform balancing act of which private party acted more disproportionately & also where there is a written article with more than 1 photos court will assess sep the proportionality of article and prop of photos
what is baroness trying to state in quotation q?
(i) the difficulties the Judiciary has created for itself by interpreting section 6(3)(a) HRA in a way which allows indirect horizontal claims; and
(ii) how the courts deal with those difficulties
Although hl insists all echr rights are equal what do the judiciary think?
the Judiciary have attached greater importance to Article 8 than Article 10 bc, with the exception of the second Von Hannover case- celeb rather than news- justa suggestion there is a wide scope
Main Body- what do we 1st do with main body?
provide a more detailed expl of the Judiciary’s application of the concept of IHE to its interpretation of section 6(3)(a) of the Human Rights Act 1998, and its invention, in the HL case of Campbell v MGN Ltd 2004, of MOPI
what is the concept of ihe?
It is this combination of events which allows individuals to argue that there have been breaches of Article 8 of the ECHR by newspapers - which are not public authorities but fellow private parties - in UK courts- rel case is campbell
what do celebs often crave?
attention, and the media is happy to provide it as it sells newspapers but can feel overstepped mark - so individ might say intrusive pub by newspaper breaching article 8 echr right to respect his/her private life but media argue have right to publish in article 10 echr right to freedom of expression
how do they bring claims if both private parties and cause of action under s7 HRA is breach of s6 HRA duty to act with echr only applying to public authorities?
answer is through a combination of:
i) the Judiciary’s application of the concept of IHE to its interpretation of section 6(3)(a) of the Human Rights Act 1998, and
ii) the Judiciary’s invention, in the House of Lords case of Campbell v MGN Ltd 2004, of MOPI
so what is Ihe?
One way to explain the indirect element of a claim is to compare it with a direct claim, so let’s first consider a direct claim
what does hra 1998 allow? (direct claims)
Article 1 ECHR: … everyone within the UK jurisdiction… who is…
Article 34 ECHR: … any person, non-governmental organisation or group of individuals claiming to be the victim of a violation’ (ie individuals / companies / pressure groups) …
… to bring direct claims against public authorities
what is this because of?
This is because they are provided with a direct cause of action by:
section 7(1) HRA 1998: A person who claims that a public authority has acted … in a way which is made unlawful by …
section 6(1): It is unlawful for a public authority to act in a way which is incompatible with a Convention right
… may
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal
so what does s7(1) give?
section 7(1) is itself a cause of action and so it allows the individual to arrive in the court room directly without the individual needing to find a separate cause of action
What is an indirect claim?
It is opposite to direct because the defendant is not a public authority but a private party e.g celeb and newspaper
what can those with an indirect claim not do?
This is the situation individuals find themselves in who cannot bring a claim under section 7(1) as not public so in order to bring newspapers to court with article 8 echr claim, individs must first find a separate cause of action to bring newspapers to court in the first place, bc no cause of action is provided against private parties by section 7(1) HRA 1998 in such situations
what is the horizontal part of an indirect horizontal effect?
The horizontal part of indirect horizontal effect means that the claim is between two parties who are considered to be of the same status, as two private parties would be, in the litigation hierarchy
what would a direct claim allowd by s7 1 hra not be>?
a horizontal claim but a vertical claim bc parties not of same status- public authority= higher status than private
what is the next q we must ask?
why are individuals permitted to bring claims against newspapers even indirectly?
what does the answer lie in?
UK Judiciary’s tendency to resist exclusion but seek inclusion in any decision making process
why was it no surprise that the judiciary intepreted section 6(3) HRA 1998: In this section ‘public authority’ includes (a) a court or tribunal?
because a court is itself a public authority, the Judiciary is under a duty to hear any claim form individs standing with breach of an ECHR right, even where the party defending breach is a private party to whom the duty section 6(1) does not therefore apply
what case confirmed the Judiciary’s interpretation of section 6(3)(a) HRA as permitting indirect horizontal claims against private parties?
douglas v hello & Venables v NGN 2001 & A v B (Flitcroft v MGN) 2002
what allows indirect horizontal claims to be heard?
It is this interpretation by the Judiciary of section 6(3)(a)
But it is important to appreciate that the Judiciary will not allow individuals bringing horizontal claims against fellow private parties to arrive in court based solely on section 6(3)(a) HRA, in the way that individuals bringing vertical claims against public authorities may arrive in court based solely on section 7(1) HRA