Lecture 16 essay

Question 1

what is this lecture on?

Answer 1

Judicial Review (JR): History, Procedure, Justification, and JR of the Royal Prerogative (RP)

Question 2

what is the q?

Answer 2

Question:

‘The application of the proportionality test .. is much less straightforward when two convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other’

(Baroness Hale of Richmond, Campbell v MGN Ltd, 2004)

With reference to relevant case law, explain how a situation might arise where judges are faced with ‘two convention rights are in play’ and evaluate whether the courts have achieved a fair middle ground in balancing ‘the proportionality of interfering with one’ against ‘the proportionality of restricting the other’.

Question 3

INTRO- what should you first begin with?

Answer 3

We should begin by putting the question into context

We should explain that the question concerns how private parties enforce their ECHR rights where the defendant is not a public authority but a fellow private party

Question 4

INTRO- what is the 1st part of the q?

Answer 4

The first part of the question - explain how a situation might arise where judges are faced with ‘two convention rights are in play’ -is asking us to explain how it is that private parties enforcing their ECHR rights against fellow private parties can bring such defendants to court in the first place when the direct cause of action contained in s7 HRA 1998 only applies to vertical claims where the defendants are public authorities

Question 5

what might we explain even in our intro also?

Answer 5

We might explain, even in our introduction, that private parties - invariably celebrities - are able to bring fellow private party defendants - invariably newspapers which have published unwanted articles and photographs - to UK courts to argue breach of their Article 8 ECHR rights, because of two reasons (see next slide):

Question 6

what are the 2 reasons?

Answer 6

(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 7

what is the 2nd part of q asking us?

Answer 7

is asking us to explain how the court, once it finds itself with two private parties before it, both of whom are alleging that the other has disproportionately breached its qualified ECHR right, attempts to balance a celebrity’s 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 8

what might we also explain in our introo?

Answer 8

we might explain that the Judiciary established in the HL case of Campbell v MGN Ltd 2004

Question 9

what did the campbell case show?

Answer 9

Campbell v MGN Ltd 2004 that all ECHR rights are of equal value and the courts therefore have to perform a balancing act, based on the evidence before them in each case, which private party acted more disproportionately

Question 10

what judiciary clarify?

Answer 10

that, where a written article is accompanied by one or more photographs, the court will assess separately the proportionality of the article and the proportionality of the photograph(s)

Question 11

why mention campbell case?

Answer 11

Campbell is arguably the most significant Article 8 v Article 10 case to date, it makes sense to pay particular attention to that case in our answer

Question 12

before leaving into what must we do?

Answer 12

we should always mention the person quoted (here Baroness Hale of Richmond) because it forces us to answer the specific question, by stating whether we agree with the quotation, rather than write all we know about the topic

Question 13

what is the quotation simply commenting on?

Answer 13

seems simply to be commenting on:

(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 14

what might we also do before leaving intro?

Answer 14

We might, for example, suggest that, despite the HL’s insistence in Campbell v MGN Ltd 2004 that all ECHR rights are of equal value, the Judiciary seems arguably to have attached greater importance to Article 8 than Article 10 because, with the exception of the second Von Hannover case, there has been a noticeable trend in the evolution of relevant case law for the Judiciary invariably to find for the celebrity rather than for the newspaper

But this is just a suggested viewpoint because there is rarely a right or wrong answer in our CAL module, so there is wide scope for arguing whatever we want

The key is to support whatever argument we choose with balanced and viable reasoning

Question 15

MAIN BODY- what must we 1st do?

Answer 15

Go into depth more- It makes sense to begin the main body of our answer by returning to, and exploring in more detail, the first part of the question, which requires an explanation of how it is that private parties bringing Article 8 ECHR claims against fellow private parties can bring defendants before a court at all when the only type of ECHR claim permitted under section 7 of the HRA 1998 is a vertical one against a public authority

Question 16

MAIN BODY- what might we provide

Answer 16

We might now provide a more detailed explanation 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 17

what is 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?

Answer 17

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 United Kingdom courts

It is important to remember that, in providing these explanations, we are required to refer to relevant case law, and we’ve agreed we should refer both to ECtHR and UK cases, and, in particular, to the case of Campbell v MGN Ltd 2004

Question 18

what do you so in such situations where celebs feel overstepped?

Answer 18

Celebrities often crave attention, and the media is happy to provide it as it sells newspapers, but, on occasion, a celebrity will feel the media has overstepped the mark

In such situations, the individual might argue that an intrusive publication by a newspaper breaches his or her Article 8 ECHR right to respect for his or her private and family life

The media, in turn, might argue that any restriction on its right to publish whatever it chooses breaches its Article 10 ECHR right to freedom of expression

Question 19

if individuals and newspapers are both private parties how can individs bring claims when cause of action under s7 hra is breach of the s6 hra duty to act compatibly with the echr and this duty applies only to public authorities?

Answer 19

As already stated in our introductory paragraphs, the 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 20

So what is IHE?

Answer 20

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

The HRA 1998 allows:
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 21

This is because they are provided with a direct cause of action by?

Answer 21

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 22

what does s7 (1) bring?

Answer 22

So an individual bringing a claim under section 7(1) against a public authority which has breached section 6(1) need not worry about how to get to court to bring such a claim because section 7(1) provides the cause of action the individual needs

In other words, 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 23

Let’s now consider an indirect claim?

Answer 23

The HRA 1998 does not allow…
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 24

what is this because of?

Answer 24

This is because they are not 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

because the defendant is not a public authority but a private party

Question 25

what is the situation people bring themselves in in regards to this?

Answer 25

This is the situation individuals find themselves in who wish to bring an Article 8 ECHR claim against a newspaper

Question 26

why cant they claim under s 7 (1)

Answer 26

They cannot bring a claim under section 7(1) because newspapers are not public authorities but private parties so, in order to bring newspapers to court and, once there, to bring an Article 8 ECHR claim against them, individuals must first find a separate cause of action to bring newspapers to court in the first place, because no cause of action is provided against private parties by section 7(1) HRA 1998 in such situations

Question 27

what is it in other words?

Answer 27

In other words, section 7(1) does not provide a cause of action to individuals who are claiming against private parties so such individuals have to find a separate cause of action

Question 28

what does the horizontal part of indirect effect?

Answer 28

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 29

what would a direct claim allowed by s 7 1 be?

Answer 29

A direct claim allowed by section 7(1) HRA would not be a horizontal claim but, instead, a vertical claim because the claim is between two parties who are not considered to be of the same status, because a public authority is deemed to have a higher status than a private party in the litigation hierarchy

Question 30

what is the next we must ask?

Answer 30

The next question we must ask is why are individuals permitted to bring claims against newspapers even indirectly?

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

Question 31

what was not a great surprise when the judiciary interpreted?

Answer 31

Because of this tendency, it was no great surprise when the Judiciary interpreted…

section 6(3) HRA 1998: In this section ‘public authority’ includes
(a) a court or tribunal

… as meaning that, because a court is itself a public authority, the Judiciary is under a duty to hear any claim form individuals standing before it alleging breach of an ECHR right, even where the party defending that alleged breach is neither the Judiciary itself nor any other public authority but, rather, a private party to whom the duty section 6(1) does not therefore apply

Question 32

what did they interpret it as?

Answer 32

… as meaning that, because a court is itself a public authority, the Judiciary is under a duty to hear any claim form individuals standing before it alleging breach of an ECHR right, even where the party defending that alleged breach is neither the Judiciary itself nor any other public authority but, rather, a private party to whom the duty section 6(1) does not therefore apply

Question 33

[If we have time, we might add the following detail:?

Answer 33

In Douglas v Hello! No 1 2001, Keene LJ confirmed the Judiciary’s interpretation of section 6(3)(a) HRA as permitting indirect horizontal claims against private parties:

‘The courts, as a public authority, cannot act in a way which is incompatible with a convention right: s 6(1). That arguably includes their activity in interpreting and developing the common law, even where no public authority is a party to the litigation.’

Question 34

what was said in the other 2 cases?

Answer 34

In Venables v NGN 2001 Dame Butler-Sloss then confirmed the IHE point mentioned by Keene LJ in Douglas v Hello! No 1

In A v B (Flitcroft v MGN) 2002, Lord Woolf then followed both Keene LJ in Douglas v Hello! No 1 2001, and Dame Butler-Sloss in Venables v NGN 2001, in once again confirming the Judiciary’s interpretation of section 6(3)(a) as permitting indirect horizontal claims against private parties]

Question 35

what is it that allows indirect horizontal claims to be heard?

Answer 35

It is this interpretation by the Judiciary of section 6(3)(a) which allows indirect horizontal claims to be heard

Question 36

what is it important to appreciate?

Answer 36

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 37

what must individs of horizontal claims bring?

Answer 37

So individuals bringing horizontal claims against fellow private parties must find a separate cause of action as a way of arriving in court in the first place

Only once in court can individuals bringing horizontal claims against fellow private parties then allege that their Article 8 ECHR rights have been violated - ie, they can only raise Article 8 ECHR arguments, once in court, on the back of a separate cause of action

Question 38

why are horizontal claims brought by individ alleging breach?

Answer 38

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

Question 39

what might we point out with cause of action?

Answer 39

[If time allows, we might point out that the cause of action may be recognised either by common law or statute

Question 40

what if the cause of action is recognised by common law?

Answer 40

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 41

what if cause of action is recognised by statute?

Answer 41

But if the cause of action is recognised by statute, 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 42

what is the next q?

Answer 42

So the next question is 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 43

what has the uk judiciary always resisited?

Answer 43

Surprisingly, whilst the US Judiciary and the judiciary in many other countries developed a tort of privacy, the 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

Vice Chancellor Sir Robert Megarry stated:
‘.. it is no function of the courts to legislate a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another.’

Question 44

what did the court of appeal then do?

Answer 44

The Court of Appeal then followed suit in dismissing a claim of invasion of the tort of privacy in Kaye v Robertson 1991

Glidewell LJ stated:

‘It is well-known that in English law there is no right to privacy, and, accordingly, there is no right of action for breach of a person’s privacy.’

Question 45

what did c hope that incorp into uk law ?

Answer 45

Despite the decisions in Malone and Kaye, claimants 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 October 2000, individuals wishing to bring indirect horizontal claims against newspapers, such as the Douglases in Douglas v Hello! No 1 2001, tried once again to argue breach of privacy as one of their causes of action in order to arrive in the court room in the first place

Question 46

what happened in the douglas case?

Answer 46

In that Douglas v Hello! No 1 2001 case, Sedley LJ in the CA caused speculation that the incorporation of the ECHR into UK law might indeed lead the UK Judiciary to establish a right of privacy when he stated that the claimants had:

‘a powerfully arguable case that… [they] have a right of privacy which English law will today recognise and, where appropriate, protect.’

But Lord Hoffmann, in the HL case of Wainwright v Home Office 2003, later quashed such speculation by confirming once and for all that there is no tort of breach of privacy in UK law, even since the HRA 1998 came into force in October 2000

Question 47

what should be disting from douglous?

Answer 47

It is important to appreciate that Wainwright should be distinguished from Douglas v Hello! because Wainwright was a direct section 7(1) HRA vertical claim against the state rather than an indirect horizontal claim against a private party, but the case Wainwright was significant in respect of the question of whether incorporation of the ECHR meant the UK Judiciary would now develop a tort of invasion of privacy, because Lord Hoffmann put an end to the speculation created by Sedley LJ in Douglas v Hello! No 1 that a privacy law was being established by saying of privacy:

‘For the reasons so cogently explained by Sir Robert Megarry in Malone… this is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle.’

Question 48

what was the course of action in douglas?

Answer 48

In Douglas v Hello! No 1 2001, the claimants, Michael Douglas and Catherine Zeta-Jones, argued all of the following as their separate cause of action:

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

Question 49

what did the ca only accept?

Answer 49

Brooke LJ in the CA not only accepted confidence as a legitimate separate cause of action for Douglas and Zeta-Jones 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 50

what happened in a v b?

Answer 50

In A v B (Flitcroft v MGN) 2002, Lord Woolf in the CA seemed to confirm that the tort of breach of confidence was the separate cause of action individuals bringing indirect horizontal ECHR claims should use, commenting that:

‘The court’s approach to the issues which the application raises has been modified because, under section 6 of the 1998 Act, the court, as a public authority, is required not to act ‘in a way which is incompatible with a convention right’. The court is able to achieve this by absorbing the rights which Articles 8 and 10 protect into the long-established action for breach of confidence.’

Question 51

what did the uk judiciary establish?

Answer 51

So, to take stock, by the end of 2003, the UK Judiciary had established that there was no tort of invasion of privacy in UK law and so the separate cause of action to be used instead by individuals bringing indirect horizontal ECHR claims was breach of confidence

Douglas and Zeta-Jones had been able to rely on breach of confidence to arrive in court because they had a pre-existing commercial relationship with OK Magazine

Question 52

what was the q that remained?

Answer 52

The question remained as to how individuals bringing indirect horizontal ECHR claims would be able to rely on breach of confidence as their separate cause of action where there was no pre-existing commercial relationship between the private parties?

Question 53

what did the supermodel find herself in?

Answer 53

This was exactly the situation in which the claimant, super model Naomi Campbell (NC), found herself in in Campbell v MGN 2004

Just as Douglas and Zeta-Jones had done, Campbell raised several arguments for her cause of action, including:

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

Question 54

what have we already agreed in regards to the supermodel case?

Answer 54

We’ve already agreed that, re NC’s privacy argument, the HL unanimously confirmed that there is no tort of invasion of privacy law in the UK and that the Article 8 ECHR right to respect for private and family life is not the same as privacy

Question 55

So how did NC to arrive in court in order to be able to raise her Article 8 ECHR argument if breach of privacy was not a tort and she couldn’t use the tort of breach of confidence because she had no pre-existing commercial relationship with MGN?

Answer 55

Almost by way of compensation for its confirmation that there is no tort of invasion of privacy in UK law, the HL effectively gave with one hand what it took away with the other when Lord Nicholls in Campbell split breach of confidence into two elements:

i) commercial confidence - as in Douglas - which requires a pre-existing confidential relationship
ii) private confidence - as in Campbell - which does not require a pre-existing confidential relationship

Question 56

what is the most appropriate alternative cause of action for individs bringing indirect horizontal echr for private confidence?

Answer 56

For private confidence, Lord Nicholls established, as the most appropriate alternative cause of action for individuals bringing indirect horizontal ECHR claims to rely on, a new spin off from the tort of breach confidence, the sub-tort of MOPI

Question 57

what about the new sub tort of mopi?

Answer 57

Although this new sub-tort of MOPI is slightly narrower in application than a tort of invasion of privacy might have been (for example, MOPI offers no relief for retention of personal information), Lord Nicholls encouraged individuals relying on private confidence always to use this new tort of MOPI - often referred to as the ‘new methodology’ - in future, removing the need for a pre-existing confidential relationship for breach of confidence to be available as a cause of action

Question 58

what did lord nicholls say for new sub tort?

Answer 58

Lord Nicholls:
‘This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship.’

Question 59

what did hl do because of what lord nicholls said?

Answer 59

So the HL essentially created a new sub-tort (MOPI) for NC and any future claimant to use where there is no pre-existing confidential relationship so that breach of commercial confidence is unavailable

Question 60

what did lord nicholls confirm in a v b?

Answer 60

Lord Nicholls confirmed Lord Woolf’s view in A v B that:
‘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.’

Question 61

what was the backup statment in douglas v hello?

Answer 61

In Douglas v Hello! Ltd 2005, Lord Phillips of Worth Matravers MR backed the statement Lord Nicholls had made in Campbell by stating that:
‘The court should, in so far as it can, develop the action for breach of confidence in such a manner as will give effect to both Article 8 and Article 10 rights.’

Question 62

but what also happened in the same case?

Answer 62

But, in that same case, Douglas and Zeta-Jones again successfully used breach of commercial confidence, rather than MOPI, as their separate cause of action because they had the requisite pre-existing commercial confidential relationship with OK! Magazine

Question 63

what is it perhaps worth noting?

Answer 63

It’s perhaps worth noting that defendants in Article 8 v Article 10 cases need not worry about finding a separate cause of action because they are brought to court by the claimants

Question 64

once in court what will the d will then not only?

Answer 64

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

Question 65

who did exactly once in court?

Answer 65

This is exactly what Mirror Group Newspapers (MGN) did as the defendant in Campbell, arguing breach of its Article 10 ECHR right as a counter argument rather than as an initial claim

Question 66

what must we now consider after doing 1st part of the q?

Answer 66

we must now consider how the Judiciary then deals with the difficulty of having two private parties before it
It is relatively straightforward for the Judiciary to apply the proportionality test when individuals allege that public authorities have breached their ECHR rights, as it’s a simple case of deciding whether the public authority restricted that individual’s ECHR right legitimately by meeting the 3 requirements

Question 67

but when does it become difficult?

Answer 67

But it becomes significantly more difficult for the Judiciary to apply the proportionality test where both parties are private parties because both will allege that their ECHR rights have been disproportionately restricted by the other

Question 68

why does it become more difficult?

Answer 68

Since the Judiciary must apply the proportionality test to both parties, it effectively has to perform a balancing act - as we stated in our introduction, it is almost a case of the Judiciary analysing which side has acted more disproportionately

Question 69

what did we agree with in regards to judicary?

Answer 69

We agreed the Judiciary only has itself to blame as it created this difficulty for itself by interpreting section 6(3)(a) HRA 1998 as meaning that horizontal ECHR claims are permitted, albeit indirectly

Question 70

what did baroness hale recognise in her quotation from campbell?

Answer 70

In her quotation from Campbell in the question, Baroness Hale recognised that the application by the Judiciary of the proportionality test is significantly more difficult for judges in indirect horizontal effect cases because it has to apply the test to both parties:

Question 71

baroness hales actual quotation?

Answer 71

’The application of the proportionality test is more straightforward when only one convention right is in play… .. it is much less straightforward when two convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other.

Question 72

Although not included in the question, Baroness hale went on to say:?

Answer 72

This involves looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each.’

‘The court must have particular regard to the importance of the Convention right to freedom of expression…’

Question 73

In Campbell, before turning its attention to how it should conduct this balancing act, the House of Lords had first to decide the significance of section 12(4) HRA, which states:?

Answer 73

‘The court must have particular regard to the importance of the Convention right to freedom of expression…’

Question 74

what did lord hope confirm?

Answer 74

Lord Hope confirmed that, despite this wording apparently giving elevated status to Article 10, all ECHR Articles are equally important

In Campbell, the House of Lords 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 75

in campbell what did the hol do?

Answer 75

In Campbell, the House of Lords 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 76

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

Answer 76

Answer:

In A v B 2002, Lord Woolf had established the ‘highly offensive’ test:

‘Certain kinds of information about a person, such as information relating to health, personal relationships or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.’

Question 77

what did lord nicholl say about highly offensive test?

Answer 77

But, in Campbell 2004, Lord Nicholls confirmed that Lord Woolf’s ‘highly offensive’ test from A v B had been replaced with the new ‘reasonable expectation of privacy’ (REOP) test:

‘Essentially, the touchstone of private life is whether, in respect of the disclosed facts, the person in question had a reasonable expectation of privacy.’

Lord Hope further confirmed this:

‘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 78

what did baroness hale further confirm about test?

Answer 78

Baroness Hale then further confirmed this:

‘An objective reasonable expectation of privacy test is clearer and simpler than the ‘highly offensive’ test.’

Question 79

so in conclusion what must the claimant do?

Answer 79

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

Question 80

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

Answer 80

Answer:

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 81

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

Answer 81

The HL confirmed in Campbell that the 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?

In Campbell, Lord Hope stated:

‘The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.’

Question 82

in summary the hl established in campbell?

Answer 82

that the claimant needs to prove that the information published was of a sufficiently ‘private’ nature for him or her to have a REOP and so engage Article 8 in the first place

Question 83

how does c prove private nature?

Answer 83

To do this, the claimant must prove that the defendant should have realised that a reasonable person of ordinary sensibilities would have viewed the information as private and confidential, and therefore would have considered publication of that information to be intrusive and offensive

Question 84

(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 84

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 85

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 85

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 86

what will the court 1st consider?

Answer 86

The court will first consider whether the claimant has met the 3 requirements contained in Article 10(2),

Question 87

what are the c’s 3 req?

Answer 87

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 88

what are d’s 3 req?

Answer 88

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 89

what does it come down to?

Answer 89

Invariably, this comes down to the 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 90

when does achieving the balance become difficult?

Answer 90

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

Question 91

In order to evaluate whether the courts have achieved a fair middle ground in balancing ‘the proportionality of interfering with one’ against ‘the proportionality of restricting the other’,?

Answer 91

we need to consider some Article 8 v Article 10 cases and look for any trends in the courts’ decisions

Question 92

what happened in campbell as a result?

Answer 92

Campbell v MGN Ltd 2004:

NC conceded that, as a result of her having repeatedly maintained she was a paragon of virtue who had never used illegal drugs, she had waived her right to a REOP in respect of the fact she was receiving treatment as a drug addict, and that it was therefore ITPI for the record to be set straight

Question 93

what did nc argue?

Answer 93

Instead, NC argued that she did have a REOP in respect of both:

(i) the disclosure of additional details such as the location of the branch of Narcotics Anonymous she used
ii) the publication of unnecessary photographs

Question 94

what did hl apply in regards to campbell?

Answer 94

The HL applied an objective test and ruled that Piers Morgan, MGN’s 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

The HL said the correct approach is to consider separately:

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

The HL was happy that the publication of the article was ITPI and that Naomi Campbell had no REOP in respect of the article

Question 95

what was hl not convinced with?

Answer 95

But the HL was not convinced that publication of the accompanying photographs was ITPI

It ruled that MGN ought to have known Campbell had a REOP and publication of the photographs amounted to an unjustified intrusion because a reasonable person of ordinary sensibilities would, in the claimant’s situation, find such publication offensive

Question 96

what did baroness hale state for naomi?

Answer 96

Baroness Hale stated, in respect of publication of the photographs:
‘There was no need to do this. The editor accepted that, even without the photographs, it would have been a front page story. He had his basic information and he had his quotes. There is no shortage of photographs with which to illustrate & brighten up a story about Naomi Campbell’

Question 97

what did hl even establish?

Answer 97

The HL even established in Campbell that consent is needed for publication of photographs of individuals, even if taken in a public place, unless the individual is exercising a public function such as a film premiere or a book promotion

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

Question 98

what case 7 weeks after?

Answer 98

Exactly 7 weeks after the HL decision in Campbell, the Strasbourg ECtHR decided a similar case involving Princess Caroline of Monaco and her husband, Ernst August, Prince of Hannover

Being a Strasbourg decision, the Von Hannovers did not have to worry about establishing a REOP and were able to base their claim purely on breach of Article 8 ECHR

The ECtHR found for the Von Hannovers against German magazines which had been publishing a series of photographs of them going about their lives as a family, including photographs of the family skiing, horse riding and eating out

Question 99

what happened in the strasbourg/.

Answer 99

In ruling that publication of the photographs made no contribution to a debate of general interest (similar to the UK Judiciary’s test of whether publication was ITPI), the ECtHR seemed to follow the UK HL in Campbell in stating that consent is needed for publication of photographs, even if taken in a public place, unless the celebrity is exercising a public function

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 100

what did ecthr emphasise?

Answer 100

‘The court considers that a fundamental distinction needs to be made between reporting facts - even controversial ones - capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of watchdog in a democracy by contributing to imparting information and ideas on matters of public interest, it does not do so in the latter case.’

Question 101

what happened in mckennit v ash?

Answer 101

McKennit v Ash 2006:

Buxton LJ further clarified the UK Judiciary’s approach to indirect horizontal ECHR claims from individuals against newspapers in McKennitt v Ash 2006 where the CA found once again found in favour of the celebrity:

‘First, is the information private in the sense that it is, in principle, protected by Article 8?. If ‘no’, that is the end of the case. If ‘yes’, the second question arises; in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Article 10?’

Question 102

what happened in murray?

Answer 102

Murray v Express Plc 2008:

Once more, the CA’s decision went in favour of the celebrity in Murray v Express Plc 2008, with Patten J stating that the law needs to ‘protect children from intrusive media attention’

Also in Murray, the CA clarified the Judiciary’s role in the balancing act is to decide whether a celebrity’s REOP is a broad one which takes account of all the circumstances of a case, such as:
the attributes of and the effect on the claimant
the nature of the activity in which the claimant is engaging
the place at which it happened
the purpose of the intrusion and whether consent was given

Question 103

what happened in mosley?

Answer 103

Mosley v NGN Ltd 2008:

Only 11 weeks after its Murray decision, the CA confirmed that publications must be ITPI in Mosley v NGN Ltd 2008

NGN argued that publication of the footage from Mosley’s orgy was ITPI because:
i) the public had a right to know about Mosley’s behaviour, given his position as president of F1 motor racing’s governing body; & ii) Mosley’s actions, as the son of the leader of a very right wing political party from the late 1930s, mocked the Holocaust

Question 104

what did eady j do?

Answer 104

But Eady J rejected both arguments, stating that, however sordid Mosley’s behaviour had been, it had taken place between consenting adults behind closed doors and had not been intended for public consumption

Question 105

ruling of mosley?

Answer 105

Mosley v UK 2011:

So consistent by now were the Judiciary’s findings in favour of the celebrities that, following his victory, Mosley felt sufficiently confident to have the apparent audacity to seek, in Mosley v UK 2011, a ruling from the ECtHR that, in future, no article could be published without the prior permission of the subject

Question 106

what did ecthr find for uk?

Answer 106

The ECtHR found for the UK, saying of the press’s contributions to a debate of general public interest:
‘.. the pre-eminent role of the press in a democracy, and its duty to act as a ‘public watchdog’, are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life … . Such reporting does not attract the robust protection of Article 10 afforded to the press.’

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

Question 107

what happened in van hannover v germany?

Answer 107

Von Hannover v Germany No. 2 2012:

This suspicion was lent further credence by the ECtHR’s decision in Von Hannover v Germany No. 2 2012 in which it permitted publication of one of three photographs of Princess Caroline as it was accompanied by an article reporting on the poor health of her father, Prince Rainier of Monaco, which was of general interest to contemporary society

Despite the Von Hannover 2 decision suggesting consent is no longer always needed prior to publishing photographs of celebrities, even where they are not performing a public function, the ECtHR said that consent is very much still needed re intrusive photographs

Question 108

what were the guidelines offerred in van hannover?

Answer 108

In the same Van Hannover 2 decision, 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 109

CONCLUSION- what do we do in conclusion

Answer 109

we’d repeat our explanation of how a situation might arise where judges are faced with ‘two convention rights are in play’

Individuals are able to argue that there have been breaches of Article 8 of the ECHR as part of their claim against newspapers in UK courts due to the UK Judiciary having interpreted section 6(3)(a) HRA as meaning it is under a duty to hear any allegations of breach of ECHR rights, even horizontal claims by one private party against another private party, provided the claimant can find an indirect way of bringing the defendant to court by successfully arguing a separate cause of action

Question 110

Conclusion - campbell part?

Answer 110

In Campbell, the HL confirmed that the separate cause of action cannot be invasion of privacy because no such tort exists in UK law, so the separate cause of action should, instead, be breach of confidence where the claimant had a pre-existing confidential commercial relationship with a third party, or MOPI where the claimant did not have a pre-existing confidential commercial relationship with a third party

It is in our conclusion that we absolutely must get off the fence and evaluate whether the courts have achieved a fair middle ground in balancing ‘the proportionality of interfering with one’ against ‘the proportionality of restricting the other’

Question 111

CONCLUSION- uks approach?

Answer 111

The approach taken by the UK courts when attempting to balance an individual’s right to respect for their private and family life under Article 8 with the media’s right to freedom of expression under Article 10 is to require the individual to prove he or she had a REOP and require the newspaper to prove it was ITPI to publish its article and any accompanying photographs

The Judiciary must then apply the proportionality test in a balanced manner so as to decide which of the two private parties should win each such case

But have the courts achieved a fair middle ground?