Human Rights Act - Article 8 Flashcards Preview

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Flashcards in Human Rights Act - Article 8 Deck (93):
1

What key objective of article 8 of the European Convention on Human Rights (ECHR)

- Protects individual citizens
- Against arbitrary interference in their private life.

2

What is the purpose of the ECHR Article 8?

- To protect individuals citizens
- Against arbitrary influence
- In their private life
- We should have freedom + autotomy to be allowed to lead and improve our lives
- To fulfil personal aims + ambitions
- And to develop our individuality
- Article 8(1)

3

Can the freedoms in Article 8 be restricted?

- Yes
- Because Article 8 = qualified right

4

Article 8 is a qualified right. What is a qualified right?

- State can interfere
- When interference is in accordance with the law
- And is pursuant to one of the legitimate aims found in Article 8(2) ECHR.

5

In which case was the impression of the breadth of scope of Article 8 given ?by Laws LJ?

- R (Wood) v Commissioner of Police of the Metropolis
- Private and family life = broad phrase indeed
- Not just protection of close personal relationships

6

What are 4 protected interests under Article 8?

1. Private life
2. Physical Mental + moral integrity
3. Sexual orientation
4. Searches of the person

7

What is the protected interest of PRIVATE LIFE?

- Categories = not closed / clearly defined
- Convention = living instrument
- "private life" >> wife definition by Strasbourg

8

PRIVATE LIFE

What happened in the case of R (Countryside Alliance) v AG

- Article 8 not engaged in this case
- Private life >> does not include activities e.g. fox hunting
- This is because of the public nature of fox hunting
- Did not usually take place in the home / in private
- Right to private life does not protect the values / sporting preferences of the appellant in public.

9

PHYSICAL MENTAL, MORAL INTEGRITY

What happened in the case of Costello-Roberts v UK?

- Article 8 engaged when it includes physical mental + moral integrity
- In this case corporal punishment (hitting with a plimsoll)
- Delivered at a private school was held to be in breach of Article 8.

Costello = corporeal punishment

10

PHYSICAL MENTAL, MORAL INTEGRITY

What happened in the case of Von Hannover v Germany

- Article 8 engaged when it extends to rights that relate to personal identify
- Persons name / picture / image rights
- Princess of Hannover >> taking pics of her and her kids undertaking ordinary activity in their family life
- Court drew distinction between public appearances as princess / private life as a mother
- These were activities that were considered to be of a purely private nature thereby engaging the Article


11

PHYSICAL MENTAL, MORAL INTEGRITY

What happened in the case of Osman v UK?

- Physical + psychological integrity aspect
- Places positive obligations on the state
- State might owe positive obligation to offer protection to an individual against threats
- To bodily integrity from another individual.

12

PRIVATE LIFE

What happened in the case of R (Nicklinson) v
Ministry of Justice?

- First applicant became completely paralysed after a stroke
- Wanted court to make a declaration that it would be lawful for a doctor to assist him in ending his life or
- that the current state of UK law was incompatible with his rights to a private life and autonomy under Article 8.
- 5/9 Justices held: court had constitutional authority to make a declaration that the general prohibition on assisted suicide in section 2 of the Suicide Act 1961 is incompatible with article 8.

13

What happened in the case of R (Conway) v SOS for Justice?

- C won appeal to be allowed permission to apply for a declaration
- Of incompatibility on very similar grounds
- To the case in Nicklinson
- Court of appeal - accepted here that it was very appropriate for this highly contentions issue to be considered again by the courts

14

PRIVATE LIFE

What happened in the case of R (F & Thompson) v Home Secretary ?

- Provision of the sexual offences act 2003
- Section 82(1) required that those convicted of an offence to keep the police notified of their whereabouts
- Held: by the Supreme Court that the lack of any right of review over these "notification requirements" was a disproportionate interference with the individuals article 8 rights
- Declaration of incompatibility >> upheld

15

PRIVATE LIFE

What happened in the case of McDonald v UK?

- Confirmed that Article 8 rights had been engaged by decision taken by local authority
- UK government sought to argue that her dignity had been respected when the decision was made to reduce the level of night- time assistance she had received as part of a care package designed to assist her with her disability

Very essence of the Convention was respect for human dignity + freedom
Accepted the undignified + distressing implication of reduction of her care package

16

SEXUAL ORIENTATION

What happened in the case of Dudgeon v UK?

- Held: criminal prohibition on homosexual conduct between consenting adults in private
- Existing that time in NI
- Is a continuing interference with the applicants right to respect for private life
- Within the meaning of Article 8(1).

17

SEXUAL ORIENTATION

What happened in the case of ADT v UK?

- Held: consensual sexual activity between 5 adult men in applicants home
- Was a matter of private sexual behaviour
- That was protected by Article 8
- Criminalisation of such activity under UK law >> breach to the respect for private life.


ADT >> 5 adult men

18

SEARCHES OF THE PERSON

Why is this requirement there?

- Because individuals often required to submit to a personal search of the body and their belongings, whether by police officers or by security guards when entering public buildings or at airports.
- Question >> if such searches a prima facie interference with the right to respect for private life?

19

SEARCHES OF THE PERSON

What happened in the case of Gillian & Quinton v UK?

- Any such interference must have degree of seriousness
- Before Article 8 rights are engaged
- Held: powers under ss 44 and 45 Terrorism Act 2000
- Which allowed police officers to stop + search people
- Without having any reasonable suspicion or any necessity to do so
- Was incompatible with Article 8.

quinton > serious name

20

SEARCHES OF THE PERSON

What happened in the case of R (Roberts) v Commissioner of the Metropolitan Police?

- Similar argument to that made in Gillan
- Raised in relation to stop and search powers under s. 60 of the Criminal Justice and Public Order Act 1994.
- Court found that the use of the power >> designed to combat the threat of dangerous and offensive weapons, could NOT be challenged on the basis that it failed to comply with the ‘in accordance with law’ element of article 8(2).
- Court was satisfied that there were sufficient constraints on the exercise of this power, including a requirement to give reasons to the person searched and the existence of disciplinary sanctions against individual police officers, if this power was abused. It therefore concluded that there was no need to make a declaration of incompatibility with article 8.

21

STATE SURVAILLANCE

What happened in the case of Khan v UK?

- Illegal surveillance of a drugs deal
- Police had installed cameras on private property
- Without the knowledge of the owner
- Held: this was a breach of Article 8

- KHANT put secret cameras on private property >> even when to see if there is a drug dealer

22

STATE SURVAILLANCE

What happened in the case of R (Wood) v Commissioner of the Police of the Metropolis?

- Wood >> media co-ordinator for an unincorporated association
- That was peacefully protesting against the arms industry
- Police took photos of protestors to identify them, in anticipation that they might commit a crime
- Doing so at public event >> where there was no expectation of privacy
- Was NOT HELD to be a breach of Article 8
- Police were not compiling a dossier on wood.

They WOOD commit a crime without the photos


+ the regulation of investigatory powers act 2000 > must be complied with.

23

When are right to family life cases engaged?

- Right to respect for family life will be important in cases and disputes involving spouses, partners and children.
- It is important to note that 'family' in Convention terms is a broad concept >> NOT restricted to the traditional family unit.

24

FAMILY LIFE

What happened in the case of Kroon v Netherlands?

- The word family defined
- Is not limited to relationships that are dependant on marriage
- Child born to a stable unmarried relationship > while Mrs Kroon was still married to Mr Kroon
- Under Dutch law >> not possible to obtain recognition of the biological father's paternity unless the husband denied paternity.
- Applicants complained of violation of A8
- Held: may include "other de facto family ties" - where partners are living together outside of marriage


CROONING over your family

25

FAMILY LIFE

What happened in the case of ADBUL AZIZ, CABALES & BALKANDALI v UK?

- Immigration rules
- That applied to all non EU nationals regardless of race / birth
- With the effect that some wives
- Could not bring their partners to the UK
- Were not held to be in breach of Article 8.


ACBD

26

FAMILY LIFE

What happened in the case of Quila v SosHD?

- Held: a ban contained in the Immigration Rules on the grant of marriage visas,
- where either party to the marriage was under 21 years old,
- breached the right to family life guaranteed by article 8. T
- he Home Secretary had argued that the raising of the age limit from 18 to 21 was justified on the basis that it sought to prevent forced marriages.
- Although the Immigration Rules were found to pursue the legitimate aim of protecting those who might be forced into marriage,
- held that the interference with the right to family life was not 'necessary in a democratic society'.
- This interference DISPROPORTIONATELY impacted on a greater number of unforced marriages than forced marriages


TEQUILA >> disproportioned response to marriages
- Getting married after drinking too much tequila
- Therefore ban did not achieve the legitimate aim by way of the least intrusive means

27

What is the most contentious aspect of Article 8 ECHR?

- Has impinged ability of authorities to deport certain foreign nationals who have family ties in the UK.

28

FAMILY LIFE

What happened in the case of R (Kiare) v SOSHD?

- Held: the practice of certifying deportees under s. 94B of the Nationality, Immigration and Asylum Act 2002 to be contrary to article 8 in relation to two cases involving citizens of Kenya and Jamaica. The consequence of this certification was that the deportees would only be able to appeal against the decision after they had been deported to their countries of origin; this would have put them at a considerable disadvantage, given the numerous practical obstacles that would have faced them.

29

FAMILY LIFE

What happened in the case of Evans v UK?

- Involved wife freezing embryos
- Later getting a divorce from her husband
- Held: Article 8 does NOT grant a right to a child per se
- Right of Mrs Evans to not have her frozen embryo's destroyed
- Did not outweigh the right of Mr Johnston to withdraw his consent from their continued existence.
- He would be forced into paternity against his will
- Like Uncle Evans
- Lack of European Consensus in this area

30

FAMILY LIFE

What happened in the case of Dickson v UK?

- Held: prisoner had the right to become a father while in prison
- Under A8
- BUT ONLY IN EXCEPTIONAL CIRCUMSTANCES
- Any restrictions to this right have to be based on the practical difficulties of conducting an artificial insemination
- When one party was in prison
- Rather than based "solely on what would offend public opinion"

31

FAMILY LIFE

What happened in the case of Aliev v Ukraine?

- Applicant had been sentenced for organised crime and several counts of aiding and abetting murder and attempted murder.
- Court considered that, while detention is by its very nature a limitation on private and family life,
- Is an essential part of a prisoner's right to respect for family life that prison authorities assist in maintaining effective contact with his close family.
- Held: the refusal of conjugal visits by the prison authorities may be regarded as justified for the prevention of disorder and crime within the meaning of article 8(2). In the circumstances of the present case, the court found that the restriction on the applicant's wife's visits was proportionate to the legitimate aim pursued.

32

FAMILY LIFE

What happened in the case of Steinfeld & Keidan v SOS education?

- Held: the bar against civil partnership for opposite sex couples
- Applying under Civil Partnerships Act 2004
- Represented a potential violation of the couples rights under Article 14
- Prohibition of discrimination
- Taken together with Article 8
- However the court would not make declaration of incompatibility in relation to the relevant provision as matter was already before Parliament

33

HOME

What happened in the case of R (Coughlan) v Devon HA?

- Held: elderly resident who had been promised a "home for life" by council
- Had right to stay in her care home
- For the promise made Mrs Coughlan that she should stay in the care home to be broken
- There had be a compelling circumstance
- Necessitated by that overriding public interest

34

HOME

What happened in the case of Harrow LBC V Qazi?

- Evictions >> can engage Article 8
- In this case
- The LL's proprietary right to repossess outweighed the defendant's right to a private life

35

HOME

What happened in the case of Manchester City Council v Pinnock

- Held: to evict a tenant for anti-social behaviour
- It must be proportionate response to their behaviour

PINNOCK >> PROPORTIONATE

36

HOME

What happened in the case of Hounslow LBC v Powell

- Similar to Manny CC v Pinnock

- Held: to evict a tenant for anti-social behaviour
- It must be proportionate response to their behaviour

37

HOME LIFE

What happened in the case of R (M) v Hampshire Constabulary?

- Sex offender
- Court held that unannounced visits for monitoring purposes
- Were considered to be acceptable
- As long as they were not overly frequent
- And did not lead to disclosure of private information about the offender >> e.g. to neighbours

38

QUALITY OF HOME LIFE

What happened in the case of Hatton v UK?

- Residents who lived below Heathrow flight path
- Held: overflying planes are not enough of a disturbance to engage Article 8
- The economic advantage of having night flights into Heathrow was a legitimate aim
- And the sleep deprivation of a few residence
- Was a proportionate interference
- No violation of A8 but there was one of A13

- PROPORTIONATE DIAMONDS (HATTON) FLYING HIGH

39

CORRESPONDENCE

What is this applied to?

- Typically to letters
- But now also e-mails, text messages and other modern forms of communication

40

CORRESPONDENCE

What happened in the case of Malone v UK?

- Held: interceptions of the applicants postal and telephone communications by police
- For the prevention and detection of crime
- Violated Article 8
- And were not in accordance w/ the law
- Because English law did not "indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities"

41

CORRESPONDENCE

What happened in the case of Foxley v UK?

- Correspondence was intercepted
- Between applicant + his solicitors
- Breach of Article 8
- There HAD been lawful justification for the interference
- In the form of insolvency Act 1986
- The intercepts continued after the order had expired

42

CORRESPONDENCE

What happened in the case of Halford v UK?

- Phone calls from business premises
- Held to engage Article 8

43

CORRESPONDENCE

What happened in the case of Copland v UK?

- Confirmed the finding in Halford v UK
- Also said that state monitoring of emails and internet usage
- By a public employer engaged A8

44

PRISONERS CORRESPONDENCE

What is the general circumstance?

- High degree of protection to prisoners rights
- To communicate with their legal advisors

45

PRISONERS CORRESPONDENCE

What happened in the case of Campbell v UK?

- Acceptable to randomly open letters
- For spot checks
- In the presence of prisoners

46

PRISONERS CORRESPONDENCE

What happened in the case of Daly v SOS Home Department?

- Not acceptable to randomly open letters for spot checks
- When the prisoner is NOT PRESENT
- BINGHAM >> represented a degree of intrusion into privileged legal correspondence that was greater than that justified by the objectives which the policy was intended to serve.

47

What are the restrictions on the right to private and family life?

- A8 ECHR >> qualified right
- State / public authority can lawfully interfere with the right

48

What 2 things must restrictions to Article 8 be?

1. Be in accordance with the law - SUNDAY TIMES v UK
2. Have a legitimate aim >> Article 8(2)
3. Necessary in a democratic society (NIAD)- Smith & Grady v UK

49

Article 8 RESTRICTION: NATIONAL SECURITY

What is the general rule?

- Article 8 can be lawfully interfered with on the basis of national security concerns.
- Tends to be an area where a sizeable margin of appreciation is left to a member state by the Strasbourg court.
- Assertion of national security will not automatically be accepted.

50

Article 8 RESTRICTION: NATIONAL SECURITY

What happened in the case of Segerstedt-Wilberg v Sweden?

- A8 held to have been violated by Security police in Sweden
- Storing personal date relating to applicants political opinions / affiliations/ activities
- Accepted that any interference was intended to protect national security and to combat terrorism
- ECtHR stated that this had to be balanced against the seriousness of the interference and concluded on these facts that there had been a violation

51

Article 8 RESTRICTION: NATIONAL SECURITY

What happened in the case of SOSHD v AP?

- Held: imposition of a 16 hour curfew
- And the requirement that the appellant had to live 150 miles from his family
- Was violation of right to family life

52

Article 8 RESTRICTION: PUBLIC SAFETY

What happened in the case of Ziya Uner v Netherlands?

- Demonstrates the legitimate aim of Public Safety
- Turkish national
- Had his permanent residence in the Netherlands withdrawn following a conviction for manslaughter.
- Did not violate his rights under article 8,
- The measures were in accordance with domestic law,
- Pursued the aim of public safety and prevention of crime, and were necessary in a democratic society.

53

Article 8 RESTRICTION: ECONOMIC WELL-BEING

What happened in the case of Da Silva v Netherlands?

- Brazilian applicant
- Argued there had been a violation of article 8 from refusal of the Netherlands to grant her a residence permit.
- application for residency had been refused by the Dutch authorities,
- ECTHR >> Held that there had been a violation of article 8. Although critical of the applicant's behaviour, the court considered that the balance should fall in favour of preserving the family ties in this situation

54

Article 8 RESTRICTION: ECONOMIC WELL-BEING

What happened in the case of McDonald v UK?

- The need for the relevant LA social services department
- to balance its budget and apportion public resources as fairly as possible
- WAS seen as pursuing this legitimate aim

55

Article 8 RESTRICTION: PREVENTION OF DISORDER OR CRIME

What is the purpose of this requirement?

- Sometimes it can be necessary for the state to interfere with article 8 rights in order to guard against criminal activity or disorder

56

Article 8 RESTRICTION: PREVENTION OF DISORDER OR CRIME

What happened in the case of R v Chief Constable of South Yorkshire Police and R v Chief Constable of South Yorkshire Police

FINGERPRINT RETENTION

- Contested issue was the police's policy of retention and use of DNA samples and fingerprint evidence
- After suspects had been cleared of the offence that gave rise to the collection of such evidence.
- In the UK courts this policy was held to be compatible with article 8.
- Court did not consider that the article had been engaged by such a measure and went on to note that, even if it had, the retention of the fingerprints and samples was justified, given the effectiveness of the practice in preventing crime.

57

Article 8 RESTRICTION: PREVENTION OF DISORDER OR CRIME

What happened in the case of S and Marper v UK?

- Applicants were successful because the blanket and indiscriminate nature of the DNA retention policy
- Seen to be disproportionate, and notably different to practices in other European countries, including Scotland.
- Court felt that the policy did not take into account the (lack of) gravity of the offences suspected, nor the presumption of innocence that should be enjoyed by acquitted suspects.
- Represented an excessively intrusive interference with personal material, which could lead to abuse in future and cause significant stigma in the meantime.

58

Article 8 RESTRICTION: PREVENTION OF DISORDER OR CRIME

What happened in the case of R (H) v A City Council?

- applicant challenged a LA decision to disclose to several organisations a previous conviction for indecent assault of a child + a possible future conviction for a similar charge he was facing.
- Held - the local authority had disproportionately interfered with the applicant's right to private life as it had adopted a blanket approach of disclosing this information to all of his contacts
- When, crucially, the applicant did not work with children as part of his affiliation with these organisations.

Might have been different if he had wanted to work with children

59

Article 8 RESTRICTION: PREVENTION OF DISORDER OR CRIME

What happened in the case of R (T and others) v Chief Constable of Greater Manchester?

- The case was brought by three applicants, two of whom had previous criminal cautions and about whom warnings had been revealed by an 'enhanced criminal record certificate' (ECRC).
- The relevant statutory framework established a blanket regime in which all previous cautions and warnings held on the police national computer were disclosed by an ECRC.
- Held > this was disproportionate to the identified legitimate aims. The blanket nature of the disclosure regime went beyond what was necessary to achieve its protective purpose.

60

Article 8 RESTRICTION: PREVENTION OF DISORDER OR CRIME

What happened in the case of R (Catt) v Comm. Of the Police of the Metropolis and R (T) v Comm. Of the Police of the Metropolis?

- review of the system operating under Data Protection Act 1998 for retention of info "for continuing ‘policing purposes’"
- Mr Catt took part in lots of peaceful political demonstrations
- Was indirectly associated with an organisation, some of whose members had committed violent offences.
- Held: systems of data retention operating were essentially proportionate in seeking to fulfil the legitimate aim of crime prevention, though there were some
- Differing opinions amongst the justices and dissent from Lord Toulson

61

Article 8 RESTRICTION: PROTECTION OF HEALTH AND MORALS

What happened in the case of Wainwright v UK?

- 2 applicants
- Strip and intimate body searches when visiting an inmate in prison
- Held: that there was no doubt that article 8 was engaged and so it fell to see whether the interference was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society.
- Searches >> in accordance with the law
- But NOT PROPORTIONATE to the legitimate aim
- Because of the intimate and poorly regulated manner in which they were carried out

62

Article 8 RESTRICTION: PROTECTION OF RIGHTS AND FREEDOM OF OTHERS

What happened in the case of Copland v UK?

- Applicant had complained that monitoring of telephone calls, internet usage and emails by her (public) employer violated her article 8 rights.
- HELD: this was a breach, interference did not have any basis in domestic law
- Therefore no need to consider the legitimacy of the aim
- Legit aim is in A 8(2) can involve the media's right of freedom of expression

63

Article 8 RESTRICTION: PROTECTION OF RIGHTS AND FREEDOM OF OTHERS

What happened in the case of Wainright v Home Office?

- Held: here was no general common law right to privacy in domestic law.
- But it does offer some degree of protection for invasions of privacy committed by private individuals.
- Common law tort of breach of confidence affords a remedy for the unauthorised dissemination of personal information.

64

Article 8 RESTRICTION: PROTECTION OF RIGHTS AND FREEDOM OF OTHERS

What happened in the case of Coco v A N Clark?


What are the 3 elements that have to be satisfied to bring an action under the law of confidence?

Held that the following three elements had to be satisfied in order to bring an action under the law of confidence:

1. The information must have the necessary quality of confidence about it.
2. That information must have been imparted in circumstances importing an obligation of confidence.
3. There must be an unauthorised use of the information to the detriment of the party communicating it

- If these are satisfied
- The publication of the information would still be lawful if justified as being in the public interest. w

65

Explain the development of the tort of "misuse of private information under HRA 1998"

- Generally HRA operates in a vertical direction to provide protection for individuals against public authorities that may be interfering with their Convention rights.
- But can also have an influence over the legal determination of claims between private individuals and private organisations with legal personality.
- There is indirect horizontal effect of the Act which comes from S 6 (3)(a) of the HRA 1998 >> recognises that courts are core public authorities

66

What was concluded by Keene LJ in the case of Douglas v Hello?

- Courts cannot act in a way that is incompatible with a convention right: s. 6(1).
- This arguably includes their activity in interpreting and developing the common law, even where no public authority is a party to the litigation

67

What has to be in place if a private party wishes to invoke a Convention right against another private party?

- Must be a pre-existing cause of action against the other private party upon which to 'hang' the Convention right. It cannot issue a free-standing claim under HRA, s. 7(1).

68

Why was the Campbell v MGN originally dismissed?

- it found there to be no obligation of confidentiality between the two private parties.
- But this finding was overturned
- LORD NICHOLLS said "the time has come to recognise that the values enshrined in Articles 8 and 10 are now part of the cause of action for breach of confidence"

69

What are the 2 elements that are necessary for determining whether there has been a misuse of private information?

1. If A8 engaged in the first place, depends on if applicant has REASONABLE EXPECTATION OF PRIVACY
2. If A8 is engaged, next stage of enquiry is to conduct a balancing exercise between the competing rights in A8 and 10 >> consider if publication was necessary.

70

What rights to the media enjoy by definition

- They enjoy article 10 rights
- To the freedom of expression
- By definition

71

Explain the aspect of "The Elements for the Tort of Misuse of Private Information":


Reasonable Expectation of Privacy, using the Campbell v MGN?

- LORD HOPE
- test for whether there is a reasonable expectation of privacy is
- Ask whether the information is obviously private. If YES, situation is one where the person affected can reasonably expect his privacy to be respected. If NO >>> courts will then consider whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, would find the disclosure offensive.

- Naomi hoped that the news would not come out

72

How was the "reasonable expectation of Privacy" explained in the case of Douglas v Hello! (No 3)?

- LORD PHILLIPS
- nature of the information, or the form in which it is kept, may suffice to make it plain that the information satisfied these criteria

73

How was "reasonable expectation of Privacy" explained in the case of Murray v Express Newspapers?

- Held: question of whether or not there is reasonable expectation of privacy in relation to the information
- Is a BROAD ONE
- Takes account of all the circumstances of the case.
- They include the attributes of the claimant, the nature of the activity in which the claimant was engaged,
- The place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred,

74

What happened in the case of Browne v Associated Newspapers re the "reasonable expectation of Privacy"?

- There will be no reasonable expectation of privacy in respect of information that is in the public domain.
- Whether information is in the public domain is a matter of fact and degree for determination in each case depending on its specific circumstances.

75

What happened in the case of McKennit v Ash re the "reasonable expectation of Privacy"?

- A person can choose to waive their reasonable expectation of privacy by placing the information in the public domain.
- The fact that a person has revealed some aspects of their personal life does not mean that every aspect of their private life is open to scrutiny

76

What happened in the case of Murray v Express Newspapers?

- Pics of JK Rowling and husband
- with their 19 month old son, David, taken when they were walking on a public street. When one of the photographs was published, the Murrays issued proceedings on David's behalf for an infringement of his right to privacy contrary to article 8. At first instance, the High Court rejected the claim on the basis that David did not enjoy a reasonable expectation of privacy from photographs taken in a public place which showed nothing embarrassing or untoward.
- Held: Q of whether there is a reasonable expectation of privacy is a broad one
- Which requires consideration of all the case circumstances

77

What was stated in the case of Axon v MOD

Re the reasonable expectation of privacy?

- articles in The Sun reporting that Axon, the commanding officer of a royal naval frigate, had been removed from his command after an Equal Opportunities Investigation by the Royal Navy had found him guilty of bullying. Axon sued the Ministry of Defence in relation to a civil servant’s disclosure of the story and also the parent company of the newspaper for publishing it. Both were sued for misuse of private information

78

What happened in the case of Re Application by JR38 for Judicial Review (NI)?

- The majority in the Supreme Court found that the applicant (who was 14 years old at the relevant time) did not have a reasonable expectation of privacy in relation to photographs published in two newspapers showing that he had been involved in serious rioting in Derry.
- Pics >> taken from CCTV images and used as part of a police campaign to identify individuals and to discourage further rioting.
- Minority considered that A8 had been engaged, (b/c of applicants age), but that the interference with this right was justified in the circumstances.

- JR38 had been RIOTING and then his photos got used!

79

Explain the balancing of A8 and A10 ECHR? What argument will the media use?

- When an applicant seeks to protect his privacy in a case of misuse of private information,
- Media will often argue that this interferes with its right to publish established by article 10 of the ECHR
- Articles 8 and 10 battle against each other

80

What is the next step after an applicant can demonstrate a reasonable expectation of privacy in the subject matter so as to engage article 8?

- Next stage of the inquiry is to conduct a balancing exercise between articles 8 and 10, and to consider, ultimately, whether the publication was necessary. When the courts are balancing these competing Convention rights, both parties are required to justify the interference they propose to make with the other party's right.

81

What did VON HANNOVER v Germany state the decisive factor in balancing the protection of private life against freedom of expression?

- The decisive factor: should lie in the contribution that the published photos and articles make to a debate of general interest.'

82

What guidance did LORD STEYN give in the case of Re S (a child) in regards to the balance between Articles 8 and 10?

- S was an eight-year–old,
- whose mother was charged with the murder of S's brother.
- A number of national newspapers wished to publish the names and photographs of S's parents and of the deceased child without referring to S.
- It was stated that neither article has as such precedence over the other.
- Have to have a comparative importance on the specific rights being claimed in each individual case
- Justifications for interfering with / restricting each right has to be taken into account
- Have to apply the proportionality test to each

- HoL considered that the interference with article 8 was not of the same order when compared with cases of juveniles, who were directly involved in criminal trials. It also considered that the principle of open justice was fundamental and, in order for justice to be open, the press should be able to report fully and freely on matters arising. It was therefore held that the balance came down in favour of article 10

83

What guidance was given in the case of Von Hannover v Germany No2 on how domestic courts should balance Article 8 and 10

1. General interest: Does info contribute to debate of general interest?

2. Fame: How well known is the person in the report

3. Prior actions: Prior conduct of the individual concerned

4. Consequences: Form + consequences of the publication
Circumstances: Circumstances in which the photos were taken, in particular whether the person photographed gave their consent

84

What happened in the case of HRH Prince of Wales v Associated Newspapers?

- Extracts from Prince Charles' journal, written during a visit to Hong Kong.
- claimant contended that the journal set out private and personal thoughts;
- defendant argued that it was not confidential as the contents were of a political nature and related to the claimant's public life which was a matter legitimately in the public interest.
- Court >> claimant had a 'reasonable expectation of privacy' in respect of the journal,
- in balancing the competing interests, there was a strong public interest in preserving the confidentiality of the journal.

85

What happened in the case of Lord Browne of Madingley v Associated Newspapers?

- Lord Browne
- Unable to restrain publication by Associated Newspapers about him
- Stated 2 points:
- the allegations related to matters in respect of which he had a reasonable expectation of privacy. This was rejected by the court. Following on from this, he also argued that the allegations had been communicated to journalists in breach of a duty of confidence arising from an intimate personal relationship.
- No reasonable expectation of privacy arose in the first place
- Academic question arose of whether A8 rights could be lost in a situation where individual has lied in court.

86

What happened in the case of Mosley v News of the World?

- Mosley, FIFA president
had taken part in a 'sado-masochistic orgy' with five prostitutes in a private, residential property. The article alleged that there had been a 'Nazi theme'. Mosley brought legal proceedings for misuse of private information. He did not dispute that the sexual activities had taken place, but contested the existence of the alleged Nazi theme.
- Mosely >> reasonable expectation of privacy re the subject matter
- would have been a public interest in the secret filming and subsequent publication of any behaviour which may have involved 'mocking the way Jews were treated' or 'parodying Holocaust horror', particularly given Mosley's public role

87

What happened in the case of The Author of a Blog v Times Newspapers?

- Eady J >> rejected a claim for misuse of private information brought by the claimant
- Who was the author of an anonymous blog on the internet. The defendants had managed to work out his identity and wished to publish this
- The blog contained various allegations of improper conduct within the police force.
- The claimant had always written his blog anonymously, but Eady J held that he could have no reasonable expectation of privacy regarding his identity because 'blogging' is 'an essentially public activity

- CANNOT HAVE A PRIVATE ONLINE BLOG
- BLOGGING IS PUBLIC

88

What can injunctions be used for? What is the most notorious example?

- Attempt to restrain publication in some cases.
- Controversy over the activities of the company, Trafigura Ltd

89

What happened re the controversy over the activities of the company Trafigura Ltd?

- Interim injunction preventing the publication of an internal company report
- Had concluded that its disposal of oil waste in the Ivory Coast would cause injury to local people.
- Injunction also prevented newspapers discussing the existence of the injunction itself, making it a so-called 'super-injunction'.
- M.P. became aware of the issue and tabled a question on the topic in the House of Commons, which was then listed on the Order Paper for that day.
- When solicitors for Trafigura became aware of this, they attempted to amend the injunction,
- The Guardian had already reported about super-injunction on its
- Super-injunction >> seen to be an attempt to restrict reporting of parliamentary proceedings
- Therefore restriction on the transparency and openness which are required in a system governed by the rule of law.

90

What is a super injunction

- Where you cannot speak of the injunction itself

91

What happened in the case of ETK v News Group Newspapers?

- Super injunctions
- Court notably stated that the potentially adverse impact of publication of a parent's misdeeds upon the lives of his children could, in effect, enhance the claimant's case for an injunction.
- Provides a very significant level of protection for children,
- But controversially allows the claimant to bolster his case precisely because of the likely impact of his own wrong-doing.

92

What happened in the case of Mosley v UK re misuse of private information?

- Successfully brought a claim for misuse of private information in the domestic courts
- Argued before the ECtHR that article 8 imposed a positive obligation on contracting states to enact a legal measure that required individuals to receive notification from the press in advance of publication of information that interfered with their private lives
- Held: A8 does not require individuals to receive advance notification from the media so that they may seek an injunction restraining publication.

93

What happened in the case of PJS v News Group Newspapers?

- Use of injunctions to restrain information being disclosed about the private + sex lives of celebrities
- Many people able to use internet to find out who the celebrity was
- So system was effectively pointless
- LORD MANCE