The European Convention on Human rights was implemented on the 3rd of September 1953. Countries can be held liable to the convention once they ratify to it. It provided 18 articles on European human rights ranging from The right to life, Article 2, through to Permitted Resitrictions, Article 18. Whereby an individual can be restricted their rights under situations where the law prohibits it, such as the right to liberty is limited when they are detained in a penitentiary. In this particular scenario Articles 8. The rights to privacy and Article 10. The freedom of expression will be looked at in more detail.
The Council of Europe created the European Convention of Human Right (theConvention) in 1950 to provide legal protections for the concepts in the Declaration. In 2000 the Labour Government brought the majority of The Convention into English law with the Human Rights Act (the Act) 1998.The rights in The Convention and The Act are divided into two categories, those which are unqualified – that is that they may not under any circumstances be removed.
Article 8 of the Human rights Act states that there should be: ‘respect for everyone’s private and family life, home and correspondence’. This means the right to get on with life without undue interference. Article 10 of the Act provides the right to pass information to others and the rights to express opinions and ideas. Until 2000 when the Act came into force, there was no right to privacy under English Law, however the laws surrounding Breach of Confidence had been used to protect certain private matters.
Reading 7: The Human Rights Act, Community Legal Services Direct Information Leaflet 7 (2005), The Human Rights Act, Legal Services Commission, p44 and p45 describe both Articles 8: Right to respect for private and family life and Article 10: Freedom of expression in more detail. The private life part of Article 8 has been used to challenge the Government for holding information about people. For example someone who was in care has used it to get information about his childhood. Article 8 has been used by people to challenge the police or secret services bugging their homes. Article 8 is a ‘qualified right’. Basically this means that in certain circumstances it can be breached. The Government or the public authority that has breached the right must show that there was a clear legl basis for the breach. It also has to show that reaching the right was ‘necessary and proportionate’ in that it was done for a good reason and went no further than it needed to.
Article 10 of the Human rights act: Freedom of expression guarantees the right to pass information to other people and to receive information that other people want to give you. It also guarantees the right to hold and express opinions and ideas. Journalists and people who publish newspapers and magazines can use Article 10 to argue that there should not be any restrictions on what they write about. Artists and writers can use it to defend themselves against people who try to censor their work. Article 10 is a ‘qualified right’ in that it can also be breached in some circumstances. Again, the Government or public authority has to give a justified reason in doing so. It also has to show that interference was ‘necessary and proportionate’ in that it was done for a good reason and went no further than what was needed.
In Reading 8: Happy Birthday human rights, Gerry,A. (2005) ‘Happy Birthday human rights’, New Law Journal, 155 NLJ 1469, p.50 paragraph 7 it states that ‘Whether the Human Rights Act 1998 was created for the first time a right to privacy, and the balance to be struck between Article 8 and Article 10 rights, have been hotly contested questions. In Campbell v MGN Ltd (2004) 2AC 457 the House of Lords (by a majority) found that the newspaper had violated the model’s right to privacy under Art 8 by publishing facts about her private life.’ In Paragraph 8 of Reading 8: Happy Birthday human rights, Gerry,A. (2005) ‘Happy Birthday human rights’, New Law Journal, 155 NLJ 1469, p.50 the courts upheld a newspaper’s right to freedom of expression. For example in Re S ( A Child) (2005) 1 AC 593, the House of Lords found that no injunction should be made to restrain the publication of the identity of the defendant in a murder trial in order to protect the privacy of her child. Lord Steyn in his judgment stated ‘neither Article has as such precedence over the other ... where the values under the two Articles are in conflict, an intense focus on the comparative importance on the specific rights being claimed in the individual case is necessary’.
Reading 9: Privacy and human rights 2004: Overview p.52 and p53 looks at Article 8 in more detail. It states that of all the human rights in the international catalogue privacy is perhaps the most difficult to define. In Reading 13 in the Case of Campbell v MGN Ltd, The House of Lords ruled that the Mirror Newspaper breached supermodel Naomi Campbell’s right to privacy in a case that could have a far reaching impact on celebrity reporting. Lady Hale, Lord Hope and Lord Carswell allowed the appeal , with Lord Nicholls and Lord Hoffman dissenting. The Lords reinstated Ms Campbell’s £3500 compensation, and awarded costs in her favour.
The competing nature of the laws, together with the nature of their wording, have created a lack of certitude among many who are subject to them. As shown by the Campbell case, there is no clear dividing line between the rights of privacy and those of freedom of expression. It is hard to justify the statement that Human Rights ensure basic rights and freedoms as they currently stand. Although they can arguably have enhanced the ability to defend ones rights within the courts, the competing nature of conflicting rights and the large areas of uncertainty that currently exist would suggest that the legislation falls far short of ensuring them. In Conclusion although the individual has freedom of expression and rights to privacy these come under conflict under certain circumstances.
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Bibliography
- Unit 20, Human Rights and the UK, Block 6 Rights, Rules, Rights and Justice, Milton Keynes, The Open University, pp. 51-88
- Unit 21, Privacy Rights, Block 6 Rights, Rules, Rights and Justice, Milton Keynes, The Open University, pp. 89-128
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Reader 3: Reading 7: The Human Rights Act, Community Legal Services Direct Information Leaflet 7 (2005), The Human Rights Act, Legal Services Commission, p39-48
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Reader 3: Reading 8: Happy Birthday human rights, Gerry,A. (2005) ‘Happy Birthday human rights’, New Law Journal, 155 NLJ 1469, p.49-51
- Reader 3: Reading 9: Privacy and human rights 2004: Overview, p52-53
- Reading 3: Reading 13 Naomi Campbell: privacy breached, p59