Thursday, December 5, 2019

Diggelmann Oliver and Maria Nicole Cleis †

Question: Discuss about the Diggelmann Oliver and Maria Nicole Cleis. Answer: Introduction: The essay deals with the interpretation of the right to privacy and right to freedom of expression in the context of Naomi Campbell. The present case revolves around the known completion that prevails between the right to privacy and freedom of expression stipulated under Article 8 and Article 10 of the ECHR respectively. Article 8 requires every person to recognize and respect the family and private life of other persons subject to an exception where such intrusion is justifiable if it purports to safeguard the freedoms and rights of other persons. Article 10 recognizes the freedom of expressions but restricts such freedom when it comes to protection of rights of other persons. When both these articles are involved, it may give rise to the question of proportionality. The essay discusses about the issues in question in the present case, which revolves around Article 8 and Article 10 of the ECHR. It further involves determination of the fact whether the published information falls wi thin the scope of article 8, breaching privacy and family life. While determining the issue the courts have applied the benchmark test to determine whether the claimant had reasonable expectation of privacy with respect to the disclosed information. In the Campbells case, Lord Hoffmann applied various approaches while dealing with the issues involved in the case. Most of the judges held that the act amounted to breach of confidence but they also held that the basis for initiating the legal action was the protection of private information. Under such circumstances, Article 8 of the ECHR shall become applicable if the person disclosing the information had the knowledge or should have known that the information in question was reasonably expected to be kept as confidential[1]. The court shall extend protection to the personal information about the individuals if it is established that privacy was reasonable expected in relation to such information. However, although the courts have not explicitly considered the question whether a person can reasonable expect their information to be kept confidential in public. Precedents have made it clear that confidentiality cannot be expected from information that has reached the public domain as was observed in Coco v Clark (Engineers) LTD [1969] RPC 41[2]. The court held that any matter that is considered as public property and public knowledge, the disclosure of the same cannot be deemed as breach of confidence. The question to determine here is when information shall be considered to be in the public domain. The courts restricted the concept of public domain by asserting that such information that is known to significant number of people shall be considered to be in the public domain. In Lennon v News Group Ltd and Twist, the court broadly construed the concept of public domain as any personal information that the claimant had discussed the matter in public. In regards to the issue of balancing Article 8 and Article 10 of ECHR in the Campbells case, the judge contended that the law must extend to protect the privacy rights because of the incorporation of the Convention rights by the Human Rights Act. The Campbells case involves a right to privacy, which is dealt under Article 8 of the European Convention of Human Rights. Article 8 protects the privacy and family life of every person and the privacy should be respected provided intrusion of such right is permissible to safeguard other right and freedoms of other individuals. Article 10 promotes freedom of expression but to when it comes to safeguard the rights of other person, the freedom of expression is restricted. The issue between the two rights is which of the two, supersedes the other. The House of Lords based its decision primarily on the conflicting rights that arises from both these articles and the significance of striking a proper balance between both the articles as neither the articles have superiority over the other. In the given case, the claimants right to privacy and the defendants right of the press to freedom of expression was subject to conflict. The High Court ruled that the Campbells right to privacy superseded the right of the press to freedom of expression and majority of the Lords agreed with the decision. The decision was based on the argument that although a free press and freedom of expression is an essential concern in the United Kingdom and in a democratic society, but it does not imply that the press shall be free to broadcast details of personal lives of celebrities that they have attempted to keep it confidential[3]. However, under circumstances where there is a prevailing public interest associated with the publication of the private information about the celebrity, the press is statutorily obligated to publicize such information. Further, in this case, the House of Lords have accepted the fact that protection could be extended towards the right to privacy of an individual by applying the prevailing law of confidence. As discussed above, one of the primary concerns related to the Campbells case is whether there was a reasonable expectation of privacy and in case it is established, the court is required to determine whether striking a balance between Article 8 and Article 10 would be favorable for safeguarding this privacy or safeguarding the publication of the information. In Joanne Murray Rowlings case, the Harry Potter author brought a legal claim against the Big Pictures Ltd for taking pictures of her son David while they were walking on the street. Rowling contended that being a public figure she expects to be photographed but her son was not a public figure and therefore had expectation of privacy that was different from her own[4]. The court further taken into consideration of the fact that David was a y oung child hence, it amounted to breach of confidence and misuse of private information. Since, he was young child, it was more important that Article 8 comes into play. However, it does not imply that there would be a press-free zone for children; hence, it is important to balance between Article 8 and Article 10 of the Convention. Under such circumstances, there would be exceptions where private information shall be disclosed by the press exercising their press right to public information, if the interest of the public supersedes the private information that is expected to be kept confidential[5]. The court decided in favor of Rowling stating that by balancing Article 8 and Article 10, any publication of photos that shows an individual performing day-to-day activities shall amount to infringement of privacy. This decision expanded the law of confidence as it is associated with the right to privacy and this decision made it easier for any person whose privacy rights have been infri nged to bring a legal action on such ground. Following on from the Campbells case, when the freedom of press is in conflict with the other interests that is safeguarded by law, it is for the court to determine whether the disclosure of the information is in the interest of the public. However, the Mirror has taken into consideration the following grounds that establish there is public interest associated with the publication of the information about Campbell. Firstly, the claimant is a public figure having a long relationship with media. Secondly, she had made publication about various aspects of her personal life including use of drugs against which she made a false claim. These were the grounds based on which the Mirror claimed that the publication of such information and the photographs was in the interest of the public and by doing so, the Mirror exercised its rights which is safeguarded by the ECHR under article 10 of the Convention[6]. In the absence of any contrary public interest recognized by law, the press is at liber ty to publicize anything it wishes to no matter to what extent such publication is offensive, spiteful or trivial in nature. However, in case there is a conflict between the interests of the press and the other rights protected by law, one must establish sufficient public interest to justify the restriction of the conflicting rights. Now, based on the grounds contended by the Mirror that since Campbell had been public figure and have publicized various aspects of her life including her drug consumption, is insufficient to establish public interest in the publication of the document and photographs, hence, it did not form a valid justification for the publication. The Mirror published the fact about the drug dependency and the fact that she was undergoing treatment because she already had publicized about her drug consumption but later denied that she was not into drugs. The court accepted that this had created adequate public interest in the correction of her previous statements. The court while determining whether the Mirror should have restricted to itself about the circumstantial details and not print the photographs, the court applied the test of necessity or proportionality according to which it was possible for the Mirror to satisfy the interest of the public by providing a less-detailed story without any p hotographs[7]. In the present case, the pictures of the claimant were taken without her consent but do not amount to a violation of privacy. Although, photographs may be taken without any consent but it does not imply that anyone who obtains photographs can publish the same as was held in Peck v United Kingdom [2003] 36 EHRR 719. Any publication by way of pictures showing somebody in an embarrassment situation, even if it is taken in a public place, shall amount to infringement of right to privacy. In this case, Ms. Campbell stated that the information regarding whether a person is receiving any medical treatment for addiction, the details with respect to the treatment of the person must be kept as confidential[8]. The necessity to maintain confidentiality of the information becomes stronger when disclosure of such information would result in disruption in treatment of the concerned person. The name narcotics anonymous itself indicates the significance of privacy in the context of the individuals who are subject to such treatment. However, the respondent MGN Ltd newspaper was of the opinion that the information published about Miss Campbell did not result in breach of duty of confidence that Mirror owed to Miss Campbell. They further contended that a proper balance was maintained with respect to the right to private life of the claimant under Article 8 of the ECHR and the right to freedom of expression that is stipulated under section 10 (1) of the Convention. With respect to the confidentiality of the information, the trial judge held that the facts that were published included that the claimant was a drug addict and was receiving treatment by NA and it included details related to the time, frequency of the treatment and the nature of the treatment process. Further, the Court of Appeal held that any person in the position of the claimant would have been distressed on seeing the photographs showing the person leaving from the place where she has been receiving therapy for drug addiction. The person would have perceived the publication along with the article, which reveals what she had been doing while she was clicked and other details about her therapy as an interference with the right to privacy. It is a fact that the press has freedom of expression to publish anything but such publication must not infringe the right to privacy of an individual. In the context of this case, the additional element in the publication sufficient to outweigh the right to freedom of expression based on which the defendant claims that there has not been any violation of the right to privacy of the claimant[9]. Despite given the significance of the right to freedom of expression that is required by the press to play its role effectively, it can be observed that there has been an infringement of the right to privacy of Miss Campbell based on the publication of the details of the treatment process being undertaken by the claimant. Thus, in regards to the question in issue to strike a balance between the article 8 and Article 10 of the Convention, it can be inferred from the decision given by the court that it applied the touchstone test to determine whether the Campbell had reasonably expected privacy with respect to the disclosed facts. Further, the publication of the photographs along with the article providing details of Campbells schedule about her therapy treatment meetings with NA, establishes the fact that there has been a breach of the right and the claimant is entitled to compensation. Thus, the court had allowed the appeal and restored the orders passed by the Trial judge. Reference list Coco v Clark (Engineers) LTD [1969] RPC 41 Dawes, Simon. "Press freedom, privacy and the public sphere."Journalism Studies15.1 (2014): 17-32. Diggelmann, Oliver, and Maria Nicole Cleis. "How the right to privacy became a Human Right."Human Rights Law Review14.3 (2014): 441-458. Lennon v News Group Ltd and Twist McHarg, Aileen. "Human rights: would our rights be better protected in or out of Europe?." (2016): 64-68. Peck v United Kingdom [2003] 36 EHRR 719 Schabas, William A.The European convention on human rights: a commentary. Oxford University Press, 2015. Smith, Rhona KM.Textbook on international human rights. Oxford University Press, 2016. Taylor, Linnet, Luciano Floridi, and Bart van der Sloot. "Introduction: A New Perspective on Privacy."Group Privacy. Springer International Publishing, 2017. 1-12.

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