‘The law has gone too far in restraining freedom of the press in the interests of privacy’. Discuss.
Recent jurisprudence stemming from the incorporation of the ECHR through the Human Rights Act 1998 has led to the alleged emergence of a tort of misuse of private information from the expansion of an action of breach of confidence, English courts’ attempt to balance Article 8 and Article 10 rights. If we assume that the right to private lives and the value of the freedom of expression should be treated equally as required by the ECHR, then it is argued that the English courts still lack adequate protection of the individual’s privacy vis-à-vis restraints on freedom of the press, because the tort of the misuse of private information, even if it does exist, is insufficient to address all possible invasions of privacy. The uncertainty of whether the tort really exists leads to inconsistent application, and in practical terms, differences in remedies. English courts acknowledge they have to give effect to ECHR jurisprudence (McKennitt v Ash) but to what extent remains unclear. It appears that even within one case (Mosley v News Group Newspaper), Eady LJ makes reference to weak indirect effect and direct effect (Kristy Hughes, ‘Horizontal Effect’). The repercussions of this uncertainty manifested itself when he declined to follow Lord Nicholls' classification of invasion of privacy as a ‘tort’, dismissing it as a “matter of speculation”, thereby denying the claimant exemplary damages. While the ECHR did decide in Mosley v UK that it was within the State’s margin of appreciation to decide how to perform its positive obligations under Article 8 ECHR, it is submitted that exemplary damages and injunctions should have been available to the claimant, particularly given the unfair gains obtained by the invaders of Mosley’s privacy. Even where the tort exists, English courts’ reluctance to recognise a general principle of...
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