BLAW10002 Lecture Notes - Lecture 9: Human Rights Act 1998, Harvard Law Review, International Covenant On Civil And Political Rights
14 May 2018
School
Department
Course
Professor
Privacy
The right to privacy
•‘Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of
private and domestic life…[and] the question [is] whether our law will recognise and protect
the right to privacy…’
•‘[T]he right to be let alone’ … ‘[of] inviolate personality.’
-Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review
193
•Privacy is a modern matter of concern - new technologies
Acknowledged in 19th century cases
Prince Albert v Strange
•Technology of etchings - printing press - copies ended up in the hands of Strange
•Etchings ‘surreptitiously and improperly obtained’ - probably given from Royal printing
assistant to Strange
-Unauthorised possession
•“Possession of the etchings or engravings…has its foundation in a breach of trust, confidence
or contract”
•Right to the privacy of the Royal Family invaded
•Strange agreed that the exhibition of etchings should not go ahead, but wanted to publish a
catalogue describing them
-Does describing them breach privacy? Judge determined it is essentially the same thing as
publishing the actual etching
•Cannot get privacy back once information is out there - “postponing of the induction would be
equivalent to denying it altogether”.
Reflected in post-war Human rights conventions
•Universal Declaration of Human Rights (1948), Article 12
-No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour an reputation.
-Everyone has the right to the protection of the law against such interference or attacks.
•International Covenant on Civil & Political Rights (1966), Article 17
1. No one shall be subjected to arbitrary or unlawful inference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation
2. Everyone has the right to the protection of the law against such interference or attacks.
•European Convention on Human Rights (1950) Article 8 (now part of UK law as a result of
the Human Rights Act 1998 (UK))
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority (police/courts/judges) with the
exercise of this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of:
-national security;
-public safety or the economic well-being of the country;
-for the prevention of disorder or crime;
-for the protection of health or morals; or
-for the protection of the rights and freedoms of others.
Subject to countervailing rights/interests
•Think about the balance between privacy and freedom of expression
•Article 19 UN Declaration, Article 19 ICCPR
•Article 10 ECHR:
-‘Everyone has the right to freedom of expression…’
-Although subject to article 10(2) - ‘The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society…,’ including
‘…for the protection of the reputation or tights of others…’
A concept closely aligned to personality
•‘the concept of private life…is primarily intended to ensure the development, without outside
interference, of the personality of each individual in his relations with other human beings…
[but] regard must be had to the fair balance that has been struck between the relevant
competing interests…[including] freedom of expression…[which] constitutes one of the
essential functions of a democratic society and one of the basic conditions for its progress
and for each individual’s self-fulfilment.’
-Von Hannover v Germany (No 2) [2012] ECHR 228;
-cf Springer v Germany [2012] ECHR 227 (talking about the rights under stifles 8 and 10
ECHR)
•Individual dignity, autonomy - you should be able to express yourself privately and publicly
-These sometimes do come into conflict - freedom of expression and privacy
Legal protection varies across jurisdictions
•Traditional protection, mainly breach of confidence - still in Australia:
-Old-fashioned doctrine
-Very broadly interpreted
-Reformed in the late 1980s with SpyCatcher case
- Start with information that is private
- Person must have notice that information is
private
- Obligation is breached is information disclosed
unauthorised
- Defence might still be available to exonerate them
- e.g. public interest defence (recognised largely in
UK)
- More debate in Australia about what defences
cover - more stringent about what is a legitimate
defence
- Remedies - usually an induction as it it hard to
recover privacy once it is breach.
- Sometimes damages available - when it is
available is questionable. Can get for stress as a
result of breach of privacy or for more tangible
consequences.
Document Summary
Samuel warren and louis brandeis, the right to privacy" (1890) 4 harvard law review. 193: privacy is a modern matter of concern - new technologies. Prince albert v strange: technology of etchings - printing press - copies ended up in the hands of strange, etchings surreptitiously and improperly obtained" - probably given from royal printing assistant to strange. Judge determined it is essentially the same thing as publishing the actual etching: cannot get privacy back once information is out there - postponing of the induction would be equivalent to denying it altogether . Re ected in post-war human rights conventions: universal declaration of human rights (1948), article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour an reputation. Public safety or the economic well-being of the country; For the prevention of disorder or crime; For the protection of health or morals; or.
