Lecture 15

Question 1

INTRO-what is the 1st part of the q asking us to explain?

Answer 1

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

Question 2

INTRO- what might we also explain?

Answer 2

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

Question 3

INTRO- what are the 2 reasons?

Answer 3

(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)

Question 4

what is the 2nd part of the q asking us to do?

Answer 4

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

Question 5

what did campbell case briefly give?

Answer 5

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

Question 6

what is baroness trying to state in quotation q?

Answer 6

(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

Question 7

Although hl insists all echr rights are equal what do the judiciary think?

Answer 7

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

Question 8

Main Body- what do we 1st do with main body?

Answer 8

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

Question 9

what is the concept of ihe?

Answer 9

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

Question 10

what do celebs often crave?

Answer 10

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

Question 11

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 11

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

Question 12

so what is Ihe?

Answer 12

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

Question 13

what does hra 1998 allow? (direct claims)

Answer 13

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

Question 14

what is this because of?

Answer 14

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

Question 15

so what does s7(1) give?

Answer 15

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

Question 16

What is an indirect claim?

Answer 16

It is opposite to direct because the defendant is not a public authority but a private party e.g celeb and newspaper

Question 17

what can those with an indirect claim not do?

Answer 17

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

Question 18

what is the horizontal part of an indirect horizontal effect?

Answer 18

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

Question 19

what would a direct claim allowd by s7 1 hra not be>?

Answer 19

a horizontal claim but a vertical claim bc parties not of same status- public authority= higher status than private

Question 20

what is the next q we must ask?

Answer 20

why are individuals permitted to bring claims against newspapers even indirectly?

Question 21

what does the answer lie in?

Answer 21

UK Judiciary’s tendency to resist exclusion but seek inclusion in any decision making process

Question 22

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?

Answer 22

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

Question 23

what case confirmed the Judiciary’s interpretation of section 6(3)(a) HRA as permitting indirect horizontal claims against private parties?

Answer 23

douglas v hello & Venables v NGN 2001 & A v B (Flitcroft v MGN) 2002

Question 24

what allows indirect horizontal claims to be heard?

Answer 24

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

Question 25

so individs bringing horizontal must?

Answer 25

find a separate cause of action as a way of arriving in court in the first place.they can only raise Article 8 ECHR arguments, once in court, on the back of a separate cause of action

This is why horizontal claims brought by individuals alleging breach of their Article 8 ECHR rights by newspapers are said to be indirect, bc have to arrive in court with a separate cause of action which will allow them to reach the court room in the first place

Question 26

if the cause of action recognised by common law?

Answer 26

If the cause of action is recognised by common law, then the Judiciary is under a duty to bring that common law into line with the demands of the ECHR

Question 27

if the cause of action recognised by statute?

Answer 27

then section 3(1) HRA allows the Judiciary to use the purposive method of interpretation to try to render that statute compatible with the ECHR ‘so far as it is possible to do so’]

Question 28

what is the next q?

Answer 28

what separate cause of action has been used to date by individuals who have managed to bring such horizontal ECHR claims to court following incorporation of ECHR into UK law in October 2000 when the Human Rights Act 1998 came into force?

Question 29

what has the uk judiciary always resisted?

Answer 29

UK Judiciary has always resisted, with the High Court, for example, confirming in Malone v MPC 1979 that no tort of invasion of privacy exists in English law

Question 30

what did the court of appeal then do?

Answer 30

followed suit in dismissing a claim of invasion of the tort of privacy in Kaye v Robertson 1991

Question 31

despite decision in malone what did c’s hope?

Answer 31

hoped that the incorporation into UK law of the ECHR when the HRA came into force in October 2000, including the Article 8 right to respect for private and family life, might encourage the Judiciary to accept that a tort of invasion of privacy now existed in the UK- so after oct individs wishing to bring indircect horizontal e.g douglas tried to argue breach again as one of causes of action to get to court room in 1st place

Question 32

what speculation did the douglas case cause?

Answer 32

that the incorporation of the ECHR into UK law might lead the UK Judiciary to establish a right of privacy
But Lord Hoffmann, in the HL case of Wainwright v Home later quashed such speculation by saying there is no tort of breach of privacy in UK law, even since the HRA 1998 came into force in October 2000

Question 33

So, if there is no tort of invasion of privacy, what cause of action should claimants rely on in IHE claims?

Answer 33

douglas cause of actions were:

i) common law breach of the tort of invasion of privacy
ii) common law breach of the tort of confidence
iii) statutory breach of section 4 of the Data Protection Act 1998

Brooke LJ in the CA not only accepted confidence as a legitimate separate cause of action but encouraged the Judiciary to develop the tort of confidence - to such an extent that it has arguably become a ‘super tort’ - as the cause of action for IHE claimants to use

Question 34

what is the problem with confidence as a cause of action?

Answer 34

only appropriate cause of action because there was a pre-existing confidential relationship in place between the claimants and OK! Magazine in the form of a commercial agreement for that magazine to publish the photographs of the claimants’ wedding in New York

Question 35

But what cause of action should such IHE claimants rely on where there was no such pre-existing confidential relationship?

Answer 35

In A v B (Flitcroft v MGN) 2002 confirm that the tort of breach of confidence was the separate cause of action individuals bringing indirect horizontal ECHR claims should use,- so instead of tort of privacy= breach of confidence

Question 36

what case was similar to douglas?

Answer 36

Campbell v MGN 2004- no tort of privacy

Question 37

why couldn’t naomi bring breach of confidence either?

Answer 37

she has no pre existing rels

Question 38

what was the alternative cause of action?

Answer 38

alternative cause of action for individuals bringing indirect horizontal ECHR claims to rely on = the sub-tort of MOPI where no pre existing rels

Question 39

what about d’s in article 8 v 10?

Answer 39

need not worry about finding a separate cause of action because they are brought to court by the claimants

Once in court, the defendants will then not only raise as a defence that they met the three requirements for legitimately restricting the claimants’ Article 8 rights but will also counter argue that the claimants have in fact breached their Article 10 ECHR right

& mgn did this in campbell

Question 40

what must we now do in the 2nd part to the q?

Answer 40

, we must now consider how the Judiciary then deals with the difficulty of having two private parties before it
as difficult to apply the proportionality test where both parties are private in breach of echr rights

Question 41

what does the judiciary have to apply as applied proportionality test?

Answer 41

Since the Judiciary must apply the proportionality test to both parties, it effectively has to perform a balancing act - Judiciary analysing which side has acted more disproportionately

Question 42

more difficult to apply prop test to indirect horizontal effect ?

Answer 42

bc it has to apply the test to both parties:

Question 43

In campbell what has the hol drew up?

Answer 43

drew up the battle lines by establishing what each party should try to prove in order for the Judiciary to go on to balance its ECHR rights against those of the other party

Question 44

Can we remember what the claimant must prove in order for its Article 8 ECHR right to be engaged?

Answer 44

In A v B 2002, Lord Woolf had established the ‘highly offensive’ test e.g Certain kinds of information about a person, such as information relating to health, personal relationships or finances, may be easy to identify as private;

Question 45

but what happened in campbell?

Answer 45

‘highly offensive’ test from A v B had been replaced with the new ‘reasonable expectation of privacy’ (REOP) test:

Question 46

what is reasonable expectation of privacy in other words?

Answer 46

‘There will be a reasonable expectation of privacy where the information is obviously or can be easily identified as private. There is no need in this situation for the ‘highly offensive’ test to be used.’

Question 47

so in conclusion what must the c prove?

Answer 47

the claimant must prove that he or she had a reasonable expectation of privacy (REOP)

Question 48

Can we remember what the defendant must prove in order for its Article 10 ECHR right to be engaged?

Answer 48

The defendant must prove that it was in the public interest (ITPI) to publish the article and any accompanying photographs

For this to be the case, the information must be more than merely sensationalist and of genuine public interest

Question 49

(i) How will the court decide whether the claimant had a REOP so that Article 8 ECHR is engaged at all?

Answer 49

REOP test is an objective one: did, or should, the defendant have known that the claimant had a reasonable expectation that such information would remain private?

Question 50

(ii) How will the court decide then whether it was ITPI for the defendant to publish the article and / or photographs so that its Article 10 ECHR is engaged at all?

Answer 50

Lord Hoffmann suggested that the ITPI counter argument is a question of proportionality:

‘The question is… the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need.’

Question 51

So, once each private party has convinced the court that their Article 8 and Article 10 rights have been engaged, how does the court then balance those two claims, given that the HL confirmed in Campbell that all ECHR Articles carry equal weight?

Answer 51

The answer is that the court will consider whether each party met the three requirements for legitimately restricting the other’s qualified ECHR right

Question 52

what are 3 requirements contained in article 10 (2) in regards to c?

Answer 52

namely that any restriction of the defendant’s Article 10 right must have been:

(1) prescribed by law - the claimant will argue MOPI to get to court and then, once in court, Article 8 ECHR
(2) in pursuance of one or more of the legitimate aims set out in Article 10(2) - the claimant might argue the legitimate aim was ‘the protection of the reputation of rights of others’ and / or ‘preventing the disclosure of information received in confidence’
(3) ‘necessary in a democratic society’ - ie proportionate - to achieve a legitimate aim - the claimant will need to show that publication was a disproportionate intrusion into their REOP

Question 53

what are 3 requirements contained in article 8 (2) in regards to c?

Answer 53

The court will then consider whether the defendant has met the 3 requirements contained in Article 8(2), namely that any restriction of the claimant’s Article 8 right must have been:

(1) in accordance with law - the defendant will argue that publication was in accordance with Article 10 ECHR
(2) in pursuance of one or more of the legitimate aims set out in Article 8 (2) - the defendant might argue the legitimate aim was ‘the protection of the rights and freedoms of others’
(3) ‘necessary in a democratic society’ - ie proportionate - to achieve a legitimate aim - the defendant will need to show that publication was ITPI

Question 54

what does it come down to?

Answer 54

third requirement, and the court will apply its balancing act principally to proportionality, at which point it will revisit the REOP and ITPI tests

Question 55

when does achieving the balance become difficult?

Answer 55

balance becomes especially difficult when both parties have acted disproportionately, in which case the court must decide which party has acted more disproportionately

Question 56

what cases do we look in to see if achieved fair middle ground?

Answer 56

Campbell v MGN Ltd 2004:

Nc argued that she did have a REOP & The HL applied an objective test and said mgn editor , knew, or ought to have known, that NC had a reasonable expectation that such information would remain private and therefore NC had a REOP

Question 57

what did hl say the correct approach to consider was?

Answer 57

The HL said the correct approach is to consider separately:

(i) the publication of the article
(ii) the publication of any accompanying photographs

Although NC won, she only did so with a 3-2 majority

Question 58

what did ecthr in the von hannovers case which was similar to campbells?

Answer 58

The ECtHR decided that the public had had no legitimate interest in knowing how Princess Caroline behaved in her private life, so her Article 8 ECHR right to respect for her private and family life had been violated

Question 59

did they favour the celeb in mckennit v ash?

Answer 59

yes & Murray v Express Plc 2008

Question 60

what happened in Mosley v NGN Ltd 2008?

Answer 60

Mosley’s Strasbourg defeat arguably signalled the pendulum starting to swing back towards the newspapers in Article 8 v Article 10 cases

Question 61

what happened in van hannover 2 decision?

Answer 61

the ECtHR offered further guidelines on how domestic courts should balance Art 8 and 10 rights by suggesting they should consider:
i) whether the information contributes to a debate of general interest
ii) how well known the individual is and the subject matter of the article
iii) the prior conduct of the individual concerned
iv) the form the publication takes, and its consequences
v) whether consent was given for the photographs to be taken

Question 62

CONCLUSION- what should we do in this?

Answer 62

talk about how c’s able to do 1st process etc then look at attempting to balance + proportionality test then must be balanced- But have the courts achieved a fair middle ground?- then look at cases- then ECtHR in Mosley v UK and Von Hannover 2 seem to indicate that it is no longer a given that the Judiciary will always find in favour of the individual rather than the newspaper= might be them being fairer