Has the passing of the Human Rights Act forced English Courts confronted the gap in the law protecting privacy? - publié le 23/09/2014

Thèmes abordés

Common law, Privacy, Human Rights Act, English law

Résumé du document

Privacy has always been a tricky topic. The debate about the place of a right to privacy in English law is not new. The United Kingdom, land of freedoms, is also known for being the country where tabloids mix with the political and financial newspapers. This topic is also known for being one point of discord between English and American Common law, where privacy is constitutionally and effectively protected in the latter. People lowering the necessity of a right to privacy put forward the freedom of expression for argument's sake. Oddly enough, the protection of privacy in The USA does not prevent the Press of being regarded as the Fourth Power.

One striking element about Privacy for the one who comes across English Law from a different legal background, is that it is the first area of law where English Judges rulings are not punctuated by the word "reasonable". At least before the implement of the Human Rights Act. Privacy has mainly been regarded as an instance of an action on breach of confidence.
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Extraits

[...] However, one of the gaps that remain unfilled and which indirectly affects the Courts decision is the lack of entrenchment of the Right to privacy. The confidence doctrine used did not amount to an impediment to legislation. Where the right to privacy is expressed in a simple Act of parliament, it does not hinder the government to pass bills which are contrary to the right to privacy. The Human Rights Act did recognize a right to privacy but it is a weak recognition and accordingly a weak application of it. [...]

[...] They are not the sort of thing that we can easily digest. Article 8 is an example. It is so wide as to be incapable of practical application. So it is much better for us to stick to our own statutes and principles, and only look to the Convention for guidance in case of doubt “ It does not help to understand though the emergence of a two- tier case law regarding privacy, where celebrities like in the Cases of Douglas v Hello and Campbell actually are granted the recognition of the infringement of their privacy and the other claimants like in the Wrainright or Peck case,where there is a reluctance for such a recognition which can lead to go to Strasbourg to eventually get it. [...]

[...] Has the passing of the Human Rights Act forced English Courts confronted the gap in the law protecting privacy? Privacy has always been a tricky topic. The debate about the place of a right to privacy in English law is not new. The United Kingdom, land of freedoms, is also known for being the country where tabloids mix with the political and financial newspapers. This topic is also known for being one point of discord between English and American Common law, where privacy is constitutionally and effectively protected in the latter. [...]

[...] Judges have repeatedly specified that there were no general tort of privacy in English law and that confidence was a sufficient tool to protect privacy[1]. The most orthodox application of this case law has led the courts to require the existence of a relationship of confidence, and then its breach to eventually favourably welcome the claimant's action. On the top of the inadequacy and inappropriateness of the doctrine of confidence, it is the denial of the possibility to bring the claimant's action under the heading of an infringement to privacy which is the most significant. [...]

[...] It should be independent, actionable per se. In some countries like Spain, Germany or Israel, privacy is constitutionally protected. Not only, it would involve the passing of bills in conformity with the right to privacy, and hence put an end to the inconsistency and confusion in this area of the law, but it would also fulfill a symbolic and educational value. Fuerhermore, some academics advocate a Bill of Rights as a solution[14]. All these thoughts considered, we could consider that all the reluctance to create an independent tort of privacy, beyond any policy reasons, lies about the topic of the Convention. [...]