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Privacy and Human Rights: Balancing the Scales of Information Protection

Explore the complex interplay between privacy rights and freedom of expression in the legal landscape, focusing on the action for misuse of private information and the balancing exercise courts undertake. Delve into key cases, insights from the European Court of Human Rights, and ongoing debates surrounding privacy protection in the digital age.

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Privacy and Human Rights: Balancing the Scales of Information Protection

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  1. Privacy and Human Rights The action for misuse of private information has grown out of the older equitable claim for breach of confidence.

  2. CONFLICT OF ARTICLES • Neither Art 8 nor Art 10 has precedence – start out equal • Court must ask: • Is the information private & protected by Art 8? • If ‘no’ then no claim • If ‘yes’ then court must carry out balancing exercise

  3. BALANCING EXERCISE • Court must have an ‘Intense focus’ on the circumstances • See Re S (A Child)[2005]1 AC 593 • Is there a reasonable expectation of privacy? See Murray [2009]Ch 481 • WHO is the claimant –adult? Child? • Is there a ‘public interest’ in the material being published? • In cases where prior restraint sought court can consider the motive of the claimant. e.g. ‘Terry’

  4. ‘After the intrusion’ claims • Peck • Campbell • Murray • Mosley • Rio Ferdinand

  5. ‘Prior Restraint’ claims • a v b plc (Flitcroft case) • Jagger v Darling • CC v AB • McKennitt v Ash • Terry (previously referred to as LNS) v Persons Unknown 2010 • Hutcheson (formerly KGM)

  6. Attitude of European Court of Human Rights • Von Hannover v Germany (1) - note comments regarding photographs in public • Compare with view of HL in Campbell - ‘Bottle of Milk’ Test • Recent decisions of ECtHR reinforce Von Hannover view

  7. Prior Restraint • Under HRA claimant MUST notify the proposed publisher of material e.g. newspaper so that arguments against injunction can be made • Look at recent judgments e.g. McLaren v NGN Newspapers Ltd [2012] EWHC 2466 • Many others available online

  8. Mosley argument • Subjectshould be notified prior to publication of material • Only REAL method of protecting privacy • Current remedy of damages after intrusion insufficient

  9. Is this going too far? • Does it restrict Article 10 rights too much? OR • Does it provide the correct protection for privacy? • Mosley argument rejected by ECtHR

  10. WHERE TO NOW? • For some recent musings and clarification on the law read… • ‘How private is private’ by Mr Justice Eady (online) • The Rio Ferdinand decision and other recent cases. • Should the law continue to be developed by courts or legislation?

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