The above Articles are often witnessed battling against each other, usually in relation to privacy and the media. Both Articles arise from the European Convention on Human Rights and Fundamental Freedoms (ECHR) and have been incorporated into our domestic legislation as a result of the Human Rights Act 1998 (HRA). Ultimately, it is the court’s responsibility to find a just balance between one’s right to privacy, namely Article 8, and its competitor, Article 10, allowing for the right of freedom of expression. The latter balance is also known as the ‘balancing exercise’, and as there is no ‘one-fits-all’ criteria and case facts vary, most outcomes in case law tend to differ and also contradict each other.
Currently, there is no stated law which explicitly guards privacy within the UK’s legislation. Nevertheless, it is certainly a practice which exists under the law of breach of confidence. It is a commonly witnessed that a celebrity, public figure, politician or even a royal will be the one aiming to engage Article 8, while the media enforces its own right under Article 10 of the ECHR. Further, it is often stated that as the degree of ‘fame’ increases, consequently a person’s right to engage Article 8 significantly decreases. Nevertheless, various case law is able to demonstrate that the latter is not always applicable, as it greatly depends on the content which has been made public (see HRH Prince of Wales v Associated Newspapers Ltd (2006 ) EWCA Civ 1776).
Further, the remedies which are available for a breach of Article 8 are damages and injunctions. As stated, there is no explicit law of privacy, however, there is perhaps a tort as to invasion of privacy. With that in mind, the clarity as to privacy within legislation is significantly blurred, as it’s a branch stemming from the law of confidence. Clarity could be enhanced if the two notions were made separate, as done so in 2004, in New Zealand. Nevertheless, the area of privacy is largely expanding and the courts are fulfilling their role of ensuring one Article doesn’t not prevail over its competitor. It is possible that in the future, privacy will be incorporated as an autonomous area within domestic legislation, enhancing clarity, efficiency and understanding as to its application.
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