Critically Analyse whether Human Rights Protect Privacy

The term “rights” has been used by philosophers, academics and politicians for centuries; although its meaning is often confused as it means different things to different people. There is general agreement that at its most fundamental, rights may be defined as either moral (also called natural rights) or legal rights. There is a distinct difference between the two. Moral rights are not contingent upon the laws, customs and traditions of a particular society but are endowed through one`s humanity. They are universal, applied equally to everyone and are inalienable in that they exist necessarily and cannot be taken away. In contrast, legal rights are artificial, not universal, are particular in nature and are alienable. In T.H. Marshall’s book, Citizenship and Social Class (1950), the tripartite nature of rights was established into three groups, civil, political and social rights. Civil rights encompass the rule of law and personal liberty, political rights comprise of the right to vote inter alia and social rights include the right to have minimum needs met. Rights are fundamental to most civilised societies. A large majority of democratic countries have written constitutions although the United Kingdom is unusual for a democracy as it has no Bill of Rights or Constitution to “enshrine” individual rights and freedoms. Instead, these rights and freedoms are considered to be protected by a presumption that we are free to do whatever is not specifically forbidden by either legislation (in the form of statutes) or the common law. These may also be termed as “residual” rights and were deemed to provide sufficient protection to an individual with regards to their personal rights and freedoms. This position will be examined in more depth in relation to privacy and family law in the following paragraphs.

The development of human rights evolved through two main concerns. The first concern was that atrocities which occurred in World War 2 were never repeated. The second concern was due to the growth of communism in Eastern Europe in order to provide protection for the member states of the Council of Europe. Inspiration was drawn from the Universal Declaration of Human Rights (UDHR). The European Convention on Human Rights (ECHR), formally the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature on 4th November 1950 in Rome with the UK being pivotal in the drafting of this Treaty. It was ratified and entered into force on 3rd September 1953 and has currently been ratified by 47 member states of the Council of Europe. The ECHR is an international treaty to protect human rights and fundamental freedoms in Europe. The UK has found itself increasingly in contravention of the various Articles of the Treaty. Numerous cases have been referred by the UK to the European Court of Human Rights (ECtHR), the judicial body responsible to enforce the Treaty. The Human Rights Act 1998 (HRA 1998) incorporated the ECHR into UK domestic law on 2nd October 2000. This Act of Parliament provides a remedy under UK domestic law for a breach of a convention right without the need to refer the case to the ECtHR in Strasbourg. By virtue of the overlapping and sometimes contradictory nature of the Articles contained within the Treaty, a balance often needs to be achieved. An individual may still refer a case if the UK judicial process has been fully exhausted. It should also be noted that the HRA 1998 does not have retrospective effect as illustrated by the case of R V Lambert [2001] UKHL 37.

The term privacy means many things in different contexts. The Calcutt Committee said in its 1990 Report of the Committee on Privacy and Related Matters that “nowhere have we found a wholly satisfactory statutory definition of privacy”. The Committee were satisfied that it would be possible to define it legally as “the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information”.

In Malone v Metropolitan Police Commissioner [1979] Ch 344 the applicant held that his right to privacy was breached by the respondent by means of interception of his telephone calls. The civil claim was dismissed by the Judge, Sir Robert Megarry, who held that “….English law did not entertain actions for interference with privacy unless the interference amounted to one of the established causes of action in tort or equity”. He accepted that his decision was inconsistent with Article 8(1) of the ECHR, but the fact that the Convention at that time was not directly enforceable in England justified his decision. Megarry took the view that anyone is entitled to do anything which is not prohibited by law. The claimant appealed to the ECtHR that a breach of Article 8 of the ECHR had occurred in Malone v United Kingdom [1984] ECHR 8691/79. The Court found in favour of the applicant and this decision directly influenced a response by the UK Parliament resulting in the enactment of the Interception of Communications Act 1985 and Police Act 1997 Part III which controlled telephone interception. In the case of Perry v United Kingdom [2003] ECHR 63737/00 the claimant was secretly videotaped by the police after refusing to take part in an identification parade in relation to an offence of armed robbery. He was convicted of the offence, although appealed the manner in which the identification was obtained. The ECtHR ruled that the covert videotaping by the police, breached the Codes of Practice based upon the Police and Criminal Evidence Act 1984, s 66, and constituted an unjustified interference with the private life of the applicant. These cases illustrate that even prior to the enactment of the HRA 1998, by virtue of the fact that the UK is a signatory to the ECHR, it is incumbent upon the UK to develop domestic law to reflect the Articles contained within the ECHR and to uphold human rights in the form of personal liberties and freedoms.

In the case of Peck v United Kingdom [2003] ECHR 44647/98 the applicant complained about the disclosure to the media of closed circuit television (CCTV) footage, which resulted in images of him attempting suicide being published and broadcast. The local authority operating the CCTV system, the Brentwood Borough Council, had released the images to the media with the aim of promoting the effectiveness of the system in the detection and the prevention of crime. Extracts of the footage, inter alia, were included in an Anglia Television news programme and in the BBC programme “Crime Beat”. The Court held that although the applicant was in a public street, he was not there for the purposes of participating in any public event, nor was he a public figure and that the footage broadcast received greater public attention than if viewed by the passing public, therefore disclosure constituted a disproportionate and unjustified interference with the private life of the applicant and a breach of Article 8 of the ECHR. This case suggests that even if actions are carried out in public there is still a requirement to balance appropriately the needs of Article 10 of the ECHR, the right for freedom of expression, and Article 8, the individuals respect for privacy.

Several high profile privacy cases have advanced the development of privacy law in the UK. In one such case, Douglas and others v Hello! Ltd [2001] 2 WLR 992, Hello! Ltd had published wedding photographs of Michael Douglas and Catherine Zeta Jones despite complex security arrangements in a classic spoiler against its main rival, OK magazine. The privacy element of the case resulted in the nominal award of £3750.00 to Douglas and Zeta Jones and £50 each for infringements of the Data Protection Act 1998, whilst the commercial element attracted an award in excess of £1 million. Although this would suggest that commercial interests were of a more significant interest than the privacy issues, this case established that Hello! Ltd had duties under both Articles 8 and 10 of the ECHR. The court also developed UK law to recognise that there was an obligation to interpret a breach of “duty of confidence” as including all the rights protected under the European Convention in relation to privacy.

Prior to the Children Act 2004 a key case defining reasonable chastisement was R v Hopley (1860) 2 F&F 202 where Justice LJ Cockburn stated that it is lawful for parents or others in loco parentis to use reasonable force in order to correct what is evil in a child in so long as the punishment is reasonable and moderate. In this case there was no definition of “reasonable and moderate” so the level of chastisement remained subjective.

In the case A v United Kingdom [1998] 27 EHRR 611 a consultant paediatrician discovered bruising on the applicant’s body consistent with the use of a garden cane applied with considerable force on more than one occasion. The applicant’s step-father was charged under UK domestic law under s.47 Offences Against the Person Act 1861for an assault occasioning actual bodily harm. He raised the defence of lawful chastisement and the jury acquitted him. The applicant took his case to the ECtHR contending that English law relating to lawful chastisement failed to protect him and that it was in breach of Article 3 which provides, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The ECtHR held that Article 3 of the ECHR was breached.

Section 58 of the Children Act 2004 limited the use of the defence of reasonable punishment so that it could no longer be used when people are charged with offences against a child such as causing actual bodily harm or cruelty to a child. The defence of reasonable chastisement would still be available in proceedings before the Magistrates Court for common assault on a child.

There has been much criticism of the UK due to its failure to remove the defence of reasonable chastisement from the statute book. Criticism has been directed internationally from organisations such as the United Nations Committee on the Rights of a Child through to domestic organisations such as the National Society for the Prevention of Cruelty to Children. Sweden was the first country to enforce an outright ban on reasonable chastisement in 1979 and international studies indicate that youth crime figures have remained steady, whilst there has been a decline in juvenile suicides and a significant decrease in juvenile deaths attributed to parental chastisement.

In summary, it is evident from the cases presented that human rights do ensure fundamental rights and freedoms. Where domestic law is inadequate, failure to adhere to the principles of the ECHR has resulted in either new or reformed legislation. Although no privacy law exists in the UK, the tort of breach of confidence from the cases presented appears to be evolving through judicial decision making to include privacy. Family law still requires development to reflect the fundamental principles of human rights under both HRA 1998 and Article 3 of the ECHR within the UK, and there appears to be an inexorable move to amend the existing Section 58 of the Children Act 2004 through national and international pressure.

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