Privacy v. Freedom of Expression - the Right to Privacy under the Human Rights Act 1998

Introduction

The Human Rights Act 1998 (ìthe HRAî), which came into force on 2

October 2000, incorporated the majority of the European Convention on

Human Rights (ìECHRî) into UK law. The HRA gives litigants the right to

claim damages against public authorities for breach of the HRA but the HRA

does not give rise to a free standing cause of action in cases where both

parties are private individuals or companies. However, Courts and

tribunals are not allowed themselves to breach the HRA. This has the

effect that in cases not involving public authorities the Courts are being

influenced by the Articles of the ECHR.

Article 8 of the ECHR provides for the right to respect for private and

family life. Article 8 has been cited in a number of recent high-profile

domestic cases in which injunctions have been sought by the claimants

against the media to prevent publication of articles or photographs on the

grounds that they contain confidential information which would infringe

the claimants' right to privacy. These cases have required the Courts to

give guidance on the conflicting principles in Article 8 and Article 10

(the right to freedom of expression) of the ECHR and also on section 12 of

the HRA. Section 12 of the HRA applies where a Court or tribunal is

considering granting relief in civil proceedings which might affect the

exercise of the right to freedom of expression and requires the Courts to

have particular regard to the importance of the right of freedom of

expression (section 12(4)). If the proceedings relate to journalistic,

literary or artistic material the Courts are required by section 12(4) to

have particular regard to two conflicting factors, namely (1) the extent

to which the material has or is about to become available to the public,

or it is or would be in the public interest for the material to be

published, and (2) any relevant privacy code.

Recent case law

The Hello! case

In Douglas and Others v Hello! Ltd [2001] Q.B. 967, the

claimants' application for an injunction to prevent the defendant

publishing a magazine containing unauthorised photographs of Michael

Douglas and Catherine Zeta Jones' wedding was dismissed on the basis that

the balance of convenience favoured the defendant, whose losses would be

difficult to quantify if publication was not permitted. The Court held

that UK law recognised a right of personal privacy under the equitable

doctrine of breach of confidence, and that when considering whether to

grant any relief which might affect the exercise of the right of freedom

of expression by restraining publication before trial, a Court would have

to take into account those rights under the ECHR which were relevant. The

Court noted that ECHR jurisprudence acknowledged...