The question deals with Human Rights issues, in all litigation, concerning convention rights, whether the parties are public or private. The Human Right Act 1998 creates new remedies against public bodies, which have breached Articles of the Convention without statutory excuse[1]. In litigation, concerning private bodies, there will be no new cause of action. However, in all cases, whatever the nature of the parties, the Act creates a positive obligation on the courts, as public bodies, to protect individuals from violations of their rights by other private individuals[2]. In this particular case, all parties will be advised as to any claims they may have against public or private bodies under the Human Rights Act 1998. Each of the issues will now be considered separately.
Part (a)
David (D) and Victoria (V) would bring an action, on behalf of themselves and Chardonnay (C), directly against the ‘Hi’ magazine under s7 of the HRA 1998, claiming breach of confidence of their Art 8(1) rights. They would then argue that the court’s duty to act compatibly with the convention requires it to act for them. Section 6 (1) makes it unlawful for the court to act in a way, which is incompatible with a convention rights. The ‘act ‘ of a public authority includes an omission, which can be challenged: s 6 (6). The court is defined as public authority s 6 (3) (a) and so they have their own primary duty to act compatibly with the convention[3]. It is thought that the courts might adopt the concept of public bodies, used in judicial review to decide what is a ‘public authority’: R v. Panel on Takeovers and Mergers ex Parte Datafin[4]
Under s 7 (1), the ‘victim’ must be directly affected by the act, make a complaint and able to take the case to court. There is no real definition of victim, but, for instance, in Dudgeon v. United Kingdom[5], the mere threat of prosecution and the intrusion into his private life was enough to make him a victim. (D), (V) and (C) have certainly been personally affected by the breach of confidence of the ‘Hi’ magazine so they would be able to pursue a case. They must bring proceedings under s7 (1) (a) before the end of the period of one year, beginning with the date that the act complained of took place: s 7 (5). Moreover, there is a three-month time limit for bringing proceedings by way of Judicial Review[6].
Section 8 (1) of the Act authorises a court which has found that an act or proposed act of a public authority is unlawful, to grant “such relief or remedy or make such order within its power as it considers just and appropriate[7]. (D) and (V) would seek an interim injunction restraining ‘Hi’, the publisher of a rival magazine, from publishing the disputed photographs. For example in the case of Kaye v. Robertson and Another[8], where an injunction was granted against the newspaper. The present case is slightly different from this case.
(D) and (V) could claim the publication of photographs, by ‘Hi’ magazine, had infringed their privacy. These rights are protected under Art 8(1) of the European Convention on the Protection of Human Rights and Fundamental Freedoms 1951. Article 8(1), which is very comprehensive, protects the right to respect a person’s private and family life, home and correspondence. The concept of private life covers the right to develop one’s own personality as well as one’s right to create relationship with others: Niemietz v. Germany[9]. Further, the right to respect private life contains both positive and negative aspects: Stjerna v. Finland[10]. There has been no free standing right to privacy in English law although there is a developing law of confidentiality in situations where there is a pre-existing legal relationship, such as a contract: Douglas v. Hello[11].
The court would maintain a delicate balance between Arts (8) and (10) of the convention to decide, in this case, for breach of confidence whether (D) and (V) were entitled to have their privacy protected or whether the intrusion into freedom of expression would prevail[12]. There is little authority on how conflicts between privacy and freedom of expression should be resolved: Winer v. United Kingdom[13]. The court, as a public authority, would be in breach of Art (8) if it failed to provide a remedy for violations of privacy, which were not justified by Art 8 (2)[14]. (D) and (V) might argue that there was no identifiable special public interest in particular material being published, and so, an injunction would be granted to protect their privacy. They may be granted a temporary injunction to prevent the unauthorised publication of photographs even where the rights to publish photographs had already been sold to another magazine: AG v. Guardian Newspapers[15]. However, the interference with the right may be justified under Art 8(2).
On the other hand, ‘Hi’ magazine would raise the defence of the right to freedom of expression under Art 10(1) of the ECHR. It is incumbent on the media to impart information and ideas concerning matters of public interest: Bladet-Tromso v. Norway[16]. Not only does the press have the task of imparting such information and ideas, the public has the right to receive them[17]. Furthermore, it is for the media, not the courts, to decide which reporting techniques are appropriate to their task in acting as a public watchdog: Jersild v. Denmark[18]
(D) and (V), in the instant case, were public figures. They must expect that their actions would be more closely scrutinised by the media: A v. B Plc and another[19]. Even trivial facts relating to a public figure could be of great interest to readers. Finally, section (12) of the HRA 1998 clearly puts freedom of expression first where there is a conflict, and this was taken into account in Douglas v. Hello[20]. In coming to this conclusion, the court was clearly influenced by the fact that (D) and (V) were not seeking to keep their christening party secret, in that they had already sold photographic rights to another magazine: Douglas v. Hello[21].
Part b
David and Muscadet (M) would bring an action against the Daily Wail under s (7) of the HRA 1998 based on the infringement of their rights under Art 8(1) of the convention, and then argue that the courts duty to act compatibly with the convention rights[22].
(D) and (M) would argue that the unauthorised publication could amount to an actionable breach of privacy under Art 8(1). Daily Wail, in this case, wanted to publish details of their secret affair, which would be a breach of confidence. Consequently, if the information which has a quality of confidence about it, as it is not in the public domain, is transmitted in circumstances importing an obligation of confidence, there is then unauthorised use of that information: per L Greene MR in Saltman Engineering v. Campbell Engineering[23]. Furthermore, there was no identifiable special public interest in the publication of the articles by Daily Wail: A v. B Plc and another[24]. So, the court would be granted in injunction, as disclosure of the secrets of a relationship could in itself, be a breach of confidence: Barrymore v. News Group Newspapers[25].
Daily Wail, on the other hand, would raise the defence of the right to freedom of expression under Art 10(1). It can be argued that the publication had a great interest to readers, as David was a public figure[26]. Furthermore, (D) and (M) can not use this remedy to cover up their own wrong doing and therefore the public interest in disclosure will prevail: British Steel Corp v. Granada Television[27]. Again, s (12) of the HRA 1998 requires the courts to give proper weight to freedom of expression in considering restraints on publication. Therefore, the weaker the claim for privacy the more likely that it would be outweighed by the claim based on freedom of expression: A v. B plc[28]. However, (D) and (M) desperate to prevent their spouse learning of their adultery since that could prejudice their marriage life.
Part c
David would seek an injunction to restrain both Darling Clinic and Muscadet, from permitting an abortion to be carried out on his girl friend without his consent, under s (7) of the HRA 1998 as infringement of his rights under Arts (2) and (8) of the convention. David will argue that the court is a public authority and must therefore not act incompatibly with convention rights[29].
(D) would further argue that the failure to prevent the abortion had infringed the foetus’s right to life under Art (2), which guarantees the right to life. In X v. United Kingdom[30], the commission doubted whether ‘everyone’ in Art 2 (1) included a foetus, but thought that even if the right to life began at conception it would be subject to an implied restriction to permit an abortion in order to protect the mother’s life or health. If Art 2 applied to a foetus, the commission reasoned, abortions would be prohibited even where continuation of the pregnancy would present a serious risk to the mother’s life, giving the foetus’s life a higher value than the mother’s, as there is no provision in Art 2 allowing a person to be deliberately killed in order to save the life of another[31]. Further, (D) had no legal right to be consulted or to stop the abortion and that “ the foetus can not, in English law, have any right of its own at least until it is born and has a separate existence from the mother:Per Sir George Baker in Paton v. Trustees of BPAS[32]. On the other hand, the commission did state that Art (2) could restrict the availability of an abortion but it gives no clear guidance on the point[33].
The abortion would fail to respect (D)’s family life under Art 8(1). Family life encompasses at least the ties between near relatives, since such relatives may play a considerable part in that life: Marckx v. Belgium[34]. Family life is now considered to extend beyond formal relationships and legitimate relationships[35]. However, there would be violations of the provisions if (D) does not have adequate input into the decisions over the foetus[36].
Part d
(D) and (F) could bring an action on behalf of themselves and (C) against the police for infringement of their Arts (2), (3), and (8) rights under s(7) of the HRA 1998[37].. (D) and (V), in this case, reported the incidents to the police who must act compatibly with the convention rights as their functions are public nature: s 6 (3) (b). (D) and (V) would seek damages for their breach of rights: s 8(1). Although damages may be awarded only where it is necessary to afford just satisfaction to the victim: s 8(3) (b). Further, where damages are awarded, they are to be calculated according to principles laid down by the ECHR: s 8 (4)(b)[38]. Following, the ECHR recently awarded almost half a million pounds to the claimants whose rights had been violated by social services: Z & Others v. UK[39].
(D) and (V) would claim a violation of Art (2) on the basis that the police failed to act reasonably in defence of life as threats were made on (C)’s life. The commission has held in X v. Federal Republic of Germany[40] that to allow a person to be evicted from his home when, because of his state of health, eviction may endanger his life, may infringe Art (2). Although the claimant was threatened by the defendant in Osman v. United Kingdom[41], where the court had taken a contrary decision. Furthermore, the police are entitled to immunity however careless they might have been: Hill v Chief Constable of West Yorkshire[42]; Osman v. United Kingdom.
It can also be argued that there was a violation of Art (3) for failing to protect her convention rights. In this case, (V) was ill, and was afraid to leave her home, which could constitute inhuman treatment, as could the infliction of psychological harm: X and Y v. Netherlands[43]. Art (3) concerns freedom from torture, inhuman treatment, degrading treatment, inhuman punishment and degrading punishment. In Ireland v. UK[44], the court held that the treatment by the state must attain a minimum level of severity if it is to fall within the ambit of Art (3).
Finally, under Art 8(1), (D) & (V) could claim that the police failed to respect their private and family life as Victoria’s luggage was stolen at the airport. In Lopez Ostra v. Spain[45], a breach of Art 8 (1) was found after considering the fair balance to be struck between the issues, in respect of a failure to protect individual’s private and family life.
Bibliography
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- Amos, M, ‘Damages for breach of the Human Rights Act’ (1999) EHRLR 178
- Feldman, D, Civil Liberties and Human Rights in England and Wales, 2nd edition, 2002, Oxford.
- Fenwick, H, Civil Liberties and Human Rights, 3rd edition, 2002 Cavendish, Great Britain
- Harris, D, O’Boyle, K and Warbrick, C, Law of the European Convention on Human Rights, 2nd edn 2002 Butterworths
- Janis, M, Kay, R and Bradley, A, European Human Rights Law: Text and Materials, 2nd edition, 2000, OUP
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http://www.liberty-human-rights.org.uk
http://www.matrixlaw.co.uk
http://www.humanrights.coe.int/
http://www.dhdirhr.coe.fr/hudoc
[1]Wadham, J & Helen, M, Human Right Act 1998, 2nd edition, 2001, p-28
[2] Janis, M, Kay, R and Bradley, A, European Human Rights Law: Text and Materials, 2nd edition, 2000, p-297
[3] Alston, P, The EU and Human Rights, 1st edition, 1999, p-97
[4] (1987) QB 815
[5] (1981) 4 EHRR 149
[6] Munro, C, Studies in Constitutional Law, 2nd edition, 1999, p-234
[7] Alston, P, The EU and Human Rights, 1st edition, 1999, p-169
[8] (1991) FSR 62, CA
[9] (1992) 16 EHRR 97
[10] (1994) 24 EHRR 194
[11] 2001 2 All ER 289
[12] Harris, D, O’Boyle, K and Warbrick, C, Law of the European Convention on Human Rights, 2nd edn 2002 p-301
[13](1986) 48 DR 154 170
[14] Van Dijk, P and Van Hoof, F, Theory and Practice of the European Convention on Human Rights, 3rd edition, 1998,p-214
[15] (1988) 2 WLR 805
[16] (1999) 6 BHRC 599
[17] Fenwick, H, Civil Liberties and Human Rights, 3rd edition, 2002 Cavendish,p-578
[18] (1994) 3 All ER 301
[19] (The Times March 11, 2002)
[20] Stone, R ,Civil Liberties, 2nd edition, 1997, British Library Catalojuing,p-421
[21] see note 11 above.
[22] See section 6 (public authority), 7 (victim) and 8 (remedy), as noted in part (a), above.
[23] (1963) 3 BHRC 522
[24] See 19, as noted public interest and public figure in part a, above.
[25] (1997) 2 WLR 608
[26] See, demonstrated (public figure) in part (a)
[27] (1981) 2 All ER 302
[28] See note 19 above.
[29] Section 6 (public authority), 7 (victim) and 8 (remedy), as noted in part (a), above.
[30] (8416/ 78) DR 19, 244
[31] Stone, R ,Civil Liberties, 2nd edition, 1997, p-450
[32] (1978) 2 All ER 989
[33] Janis, M, Kay, R and Bradley, A, European Human Rights Law: Text and Materials, 2nd edition, 2000,p-305
[34] (1979) 1 BHRC 622
[35] Wadham, J & Helen, M, Human Right Act 1998, 2nd edition, 2001,p-45
[36] Harris, D, O’Boyle, K and Warbrick, C, Law of the European Convention on Human Rights, 2nd edn 2002,p-598
[37] See, section 6 (1) public authority and s (7) victim, as demonstrated in part (a)
[38] Amos, M, ‘Damages for breach of the Human Rights Act’ (1999) EHRLR 178
[39] The Times May 31st,2001
[40] (5207/71) CD 39,99
[41] (2000) 29 EHRR 245
[42] (1989) AC 53
[43] (1986) 3 BHRC 522
[44] (1978) 2 EHRR 25
[45] (1996) EHRLR 597