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Privacy and Human Rights. The action for misuse of private information has grown out of the older equitable claim for breach of confidence. 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?
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Privacy and Human Rights The action for misuse of private information has grown out of the older equitable claim for breach of confidence.
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
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’
‘After the intrusion’ claims • Peck • Campbell • Murray • Mosley • Rio Ferdinand
‘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)
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
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
Mosley argument • Subjectshould be notified prior to publication of material • Only REAL method of protecting privacy • Current remedy of damages after intrusion insufficient
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
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?