Human Rights - Articles 6 and 8 applied to fictitious cases.

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Question 1:

Mike Russell is a (fictitious) former international cricket player, having played regularly for England between 2005 and 2011. In 2012 he published his autobiography in which he wrote controversially about a tour by England to South Africa. He claimed that some of his team mates were more interested “in scoring with the local girls than in scoring runs against the South Africans”. He continued that if the fast bowlers had spent less time wine tasting and more time practising in the nets, England might well have beaten South Africa in the test series. A few months ago the following article appeared in ‘Wicket World’, a leading cricket


Mike’s Misdeeds

When Mike Russell played cricket for England, he cultivated a squeaky clean image. Well, the truth about Mike is now out! When Mike dropped out of the final test against South Africa on the epic tour so graphically described in his book, the England management announced that he had got food poisoning. Wicket World can now disclose the truth. Mike was actually suffering the after-effects of a sordid, vodka-filled night of passion with a local prostitute.

Happily Mike has now seen the error of his ways, and he checked in last week at The Cloisters, a private clinic which helps people suffering from addictions. Well done, Mike, for fighting your addiction to vodka!

Mike began proceedings against Wicket World in the High Court alleging that his right to privacy has been infringed. You may assume that the allegations in Wicket World are true. Explain, with reference to relevant case law, the basis on which Mike would bring his claim and the basis on which Wicket World would defend it. Outline the approach the High Court would take when considering the claim.

Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 (the ‘Convention’) provides that an individual is entitled to respect for their private life. Article 10 protects freedom of expression. Clearly, a conflict between these Convention Rights arises as the Wicket World magazine wants to publish information about Mike that he would rather keep private. Mike’s potential claim for injunction for further publication or for damages will be considered in light of recent judgments concerning the way to resolve a conflict between those rights.

Although Article 8 has both vertical and horizontal effect, i.e. available to private individuals, it can be only applied against a public authority (S.6 of the Human Rights Act 1998 (the ‘HRA’)). Under S.6(3)(b) of the HRA Wicket World’s nature of function appears to be of a private nature. Mike would, therefore be unable to bring the case based on Article 8 and would have to base his claim on an existing common law.

However, as stated by Glidewell JL in Kaye v Robertson and Sports Newspapers Ltd [1991] FSR 62 there is no right to privacy in English Law. Some claim that there is no need for such a tort as most of the situations regarding protection of privacy are protected by action for breach of confidence. In order to be successful, Mike would need to show that the confidential information had been disclosed in circumstances giving rise to a duty of confidence i.e. where a person receives information under understanding that it is to be kept confidential, or where a person knows or ought to know that the information has been disclosed to him in confidence; and that a further disclosure would be detrimental to the party communicating it – i.e. to Mike. If he is successful, he would be able to take an action to restrain disclosure by third party under the ‘Spycatcher’ principle (A G v Guardian Newspapers (No.2) [1990] 1 AC 109).

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‘The prostitute and dropping out’

It is not clear from the facts given who provided the Wicket World with the information. It could be argued that Mike has provided them in his autobiography and that it was already in the public domain (the Spycatcher case). However, it appears that by criticizing his teammates he was implying that he did not participate in the described behaviour. This seems to be supported by the Wicket World’s article stating that prior the article he cultivated a squeaky clean image.

If the information was provided by the prostitute, Mike would have a ...

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