Human_rights_law

The horizontal effectOver the past two months, the courts have set about answering, in a series of injunction cases, a number of questions that...The horizontal effectOver the past two months, the courts have set about answering, in a series of injunction cases, a number of questions that taxed Parliament during the passage of the Human Rights Bill.

One was whether the Act would have an effect on legal relations between individuals (known as the horizontal effect) as opposed to legal relations between individuals and the state (the vertical effect).

In particular, the media were concerned that article 8 of the European Convention on Human Rights might prompt the courts to create a right of privacy.

To meet their concerns about press freedom, Parliament introduced section 12 of the Human Rights Act, which directs the courts to have particular regard to the right to freedom of expression, and not to grant any interim relief to restrain publication unless satisfied that the applicant is likely to establish that publication should not be allowed (s12(3)).

Furthermore, where journalistic material is concerned, section 12(4) requires the court to have regard to any relevant privacy code.

The meaning and effect of section 12 have been a subject of debate.

In the first case, Michael Douglas and Catherine Zeta-Jones sought to prevent Hello! magazine from publishing unauthorised photographs of their wedding.

The couple had sold to OK! magazine the exclusive right to cover their wedding.

There was heavy security, and guests were asked not to bring cameras or take photographs.

Somehow, unauthorised photographs found their way to Hello!, which proposed to publish them in a spoiling edition before OK! appeared.

The judge granted an interim injunction restraining Hello! from publishing.

The Court of Appeal set it aside.

The first question was whether the Human Rights Act had horizontal effect, requiring the court to protect the claimants privacy against interference by a private company.

The Act is primarily intended to protect individual rights from interference by the state.

However, in certain circumstances, the state is obliged to take positive steps to protect individuals from interference with their rights by other individuals or private bodies.

Section 6 of the Act obliges public authorities, including the courts, to act in a manner which is compatible with convention rights.

All three members of the Court of Appeal recognised that this could place upon courts a positive obligation to protect individuals from interference with their convention right to respect for private life even where the threat of interference emanated from a private media organisation.

For Lord Justice Sedley, the horizontal effect of the convention, or at least of article 10, was beyond question.The second issue was how the claimants right to respect to private life might be protected, given that it has been generally accepted hitherto that English law contains no right of privacy (see Gazette.

[2001] 25 January, 30).

The court then had to consider the balance between the right to respect for private life under article 8 and the right to freedom of expression under article 10.

In particular, they had to decide whether section 12 of the Act fulfilled its intended aim of giving extra protection to press freedom.

Broadly speaking, the judges decided it did not.

Lord Justice Brooke said the press freedom was circumscribed by section 3 of the Press Complaints Commissions code of practice, the relevant privacy code, which expressly protected the right to respect for private life.

Lord Justice Sedley observed that while section 12 stipulates the court to have particular regard to the convention right to freedom of expression, this encompassed a reference not only to the right in article 10(1), but also to the limits to the right in article 10(2).

These included the reputation and rights of others, such as the right to life under article 2 and the right to private life under article 8.

For him, therefore, you cannot have particular regard to article 10 without having equally particular regard to at the very least to article 8.

For Lord Justice Keene, section 12(3) did not give priority to one right over another.

It merely required the court to apply its mind to how one right is to be balanced against another, and to consider the gravity of the consequences of publication for the applicant.

For example, where publication might lead to physical violence or death, the court must consider not only how great the risk might be but also the gravity of the consequences.

All three judges agreed that an injunction should be refused because Douglas and Zeta-Jones had in fact traded their privacy like a commodity: the injunction was intended to protect not their privacy but the commercial value of the rights which they had sold to OK!.The balance between press freedom and the right to life and to protection from harm was the issue before Lady Justice Butler-Sloss.

in Venables & Thompson v News Group Newspapers & ors (judgment of 8 January 2001), in which the murderers of James Bulger sought to prevent publication of their identity or whereabouts when they are released on licence.

The claimants argued that publication of the information created a real risk of revenge or vigilante attacks.

The Lady Justice Butler-Sloss accepted that she had to apply article 10 directly to the case.

But as a public authority the court also had a positive obligation to protect the claimants right to life, to protection from ill treatment and their right to respect for their private life against which the medias freedom of expression had to be balanced.

She rejected the submission that she should create a free-standing cause of action called breach of privacy.

However, she held that information about the claimants new identity, their appearance and their whereabouts could be protected by the law of confidence, although she did not identify the relationship of confidence which gave rise to the duty.

Applying the principle of proportionality, it would only be appropriate to grant injunctions where it could be convincingly demonstrated that it was strictly necessary.

The deciding factor in granting the injunction was that there was a risk to the claimants right to life and right to protection from inhuman or degrading treatment.

The apparent emasculation of section 12 continued in Imutran Ltd v Uncaged Campaigns Ltd (Times 30 January 2001), in which Sir Andrew Morritt granted an application for an interim injunction to restrain the defendants from misusing confidential information or infringing copyright.

While Sir Andrew accepted that in theory likely to establish in section 12(3) was slightly higher on the scale of probability than the real prospect of success test in American Cyanamid Co v Ethicon Ltd [1975] AC 396, the difference was in reality so small that he could think of few, if any, cases in which it would make any difference.

The only slight ray of comfort for the drafters of section 12 came in AG v Times Newspapers Ltd (Times 31 January 2001).

Times Newspapers had given an undertaking not to publish material given to them by former intelligence agent Richard Tomlinson save to the extent that information was in the public domain.

Relying on section 12, the Master of Rolls held that it would be contrary to article 10 to require the newspaper to seek confirmation from the Attorney-General or the court that the material was in the public domain before publishing it.

The matter should be left to the judgment of the editor.

Section 12 of the Human Rights Act was introduced to safeguard press freedom against judicial incursion.

On the evidence so far, its only real effect has been to give a greater impetus to the development of a common law right to privacy, while adding little more than lip-service to freedom of expression.