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Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth?

Published online by Cambridge University Press:  17 January 2008

Extract

Protection of privacy is one of the areas most often claimed as having the potential for significant development as a result of incorporation of the European Convention on Human Rights (“the Convention”). As is well known, English law lacks a general remedy for infringement of privacy per se: although the courts have lamented the lack of protection for private individuals (notably from the press), they have hitherto left it to Parliament to intervene. After flirtation with introducing either a specific statutory code applicable to intrusive journalistic activities or a general statutory tort of infringement of privacy, the Conservative government abandoned the idea altogether.1 Perhaps because of the lack of legislative concern (politicians, after all, have reasons of strong self-interest not to provoke the press), the judiciary has expressed renewed interest, at least through extra-judicial pronouncements2 and broad hints in one recent House of Lords decision that the time for reconsideration may be fast approaching.3

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Copyright © British Institute of International and Comparative Law 1999

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References

1. Government Response to the House of Commons National Heritage Select Committee Report on Privacy and Media Intrusion, Cm.2918 (1995), rejecting a statutory Press Tribunal, a new civil wrong (proposed earlier in the Lord Chancellor's discussion paper, Infringement of Privacy (1993)) or a new civil wrong and criminal offence of placing a surveillance device and taking a photograph on private property without consent in order to obtain personal information with a view to publication (as proposed in the Calcutt Report, Review of Press Self-Regulation, Cm.2135 (1993)Google Scholar, chap.7). Note, however, the scope of the Protection from Harassment Act 1997, s.1.

2. Esp. Lord, Bingham: “Should There be a Law to Protect Rights of Personal Privacy?” [1996] E.H.R.L.R. 450, 461462Google Scholar and “The Way We Live Now” [1998] 1 Web. J.C.L.I.Google Scholar

3. In R. v. Khan [1996] 3 All E.R. 289Google Scholar Lord Browne-Wilkinson stated it was “not necessary” to decide whether English law recognises a right of privacy but that in view of Arts.8 and 13 the issue was likely to recur (p.291 and cf. Lord Nkholls at p302).

4. Lord Irvine of Lairg, HL Hansard, Vol.582, cob.1231–1232 (3 11 1997)Google Scholar; for a similar, more fully explained, argument see Milmo, P. QC, “Human Rights, Privacy and the Press” (1997) 147 N.L.J. 1631.Google Scholar

5. David, Pannick QC, “Why the PCC Will Still Have a Role”, The Times, 18 Nov. 1997.Google Scholar

6. E.g. an interview in which he argued that the Press Complaints Commission might have powers to fine newspapers and of prior restraint: New Statesman, 6 Feb. 1998, pp.2425.Google Scholar

7. The government introduced a new clause (now s.12), which applies wherever a court is considering granting relief which might affect the exercise of the Convention right of freedom of expression: HC Hansard, Vol.315, cob.534 et seq. (2 07 1998).Google Scholar It will apply mainly to applications for pre-publication injunctions for breach of confidence. Criminal proceedings are excluded. S.12 requires that if the newspaper is not present or represented the court must be satisfied that all practicable steps have been taken to notify it, or that there are compelling reasons why it should not be notified. The court is not permitted to grant an order unless at trial the applicant is “likely to establish” that the publication should not be allowed (this in contrast to the “arguable case” test for interlocutory injunctions). The court is required to have “particular regard” to Art.10 and must also consider the extent to which the information has been or is about to become available to the public, the public interest in publication, and any relevant privacy code (e.g. from the Press Complaints Commission, the Independent Television Commission or the broadcaster itself).

8. In this article I avoid the term, derived from German constitutional law, adopted by Convention scholars to describe the phenomenon—Drittwirkung. There are two reasons: first, the several types of Drittwirkung appear to be closely tied to features of German constitutional law which have no parallel in the application of the Convention in the UK (e.g. a separate Constitutional Court). (For similar reasons of constitutional difference I avoid reference to the US doctrine of “State action”) Second, “horizontal effect” is the term used in relation to the countries to which I draw the closest comparison infra: Canada, South Africa and New Zealand

9. For a recent example see Graber, C. and Teubner, G., “Art and Money: Constitutional Rights in the Private Sphere” (1998) 18 Ox. J.L.S. 61.Google Scholar

10. This had been urged as a strategy in its own right in earlier proposals in the 1970s: see the House of Lords Select Committee, Report ofthe Select Committee on a Bill of Rights, HL 176 (19771978), para.41.Google Scholar A Home Office discussion paper was inconclusive: Legislation on Human Rights With Particular Reference to the European Convention: A Discussion Document (1976), paras.2.18–2.19 and 4.14–4.15Google Scholar, arguing that the position could be left open or that a bill of incorporation could embody a “State action” doctrine whereby the courts assumed responsibility for ensuring adequate protection of citizens' rights, whatever the source of the threat. The Northern Ireland Standing Advisory Commission on Human Rights preferred a clear statement that the Bill was not intended to apply between private individuals: The Protection of Human Rights by Law in Northern Ireland, Cmnd.7009 (1977), para.7.11.Google Scholar

11. University of Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom; Practice and Principles (1998), pp.6264.Google Scholar

12. idem, p.70; and see his judgment in Du Plessis v. De Klerk (infra).

13. idem, pp.79–80; see also the argument of Murray Hunt (n.126 infra).

14. “Convention rights” follows the usage ofthe Human Rights Act 1998.S.1 and Sched.1. Part of my argument is that domestic interpretation of these rights is likely to develop in ways that are not identical with the Strasbourg interpretation, because the margin of appreciation will not apply to domestic courts. Also s.6(1) makes it unlawful for a public authority to act contrary to a person's Convention rights and this may bind bodies domestically for which the UK would not be liable at Strasbourg. Although the Strasbourg jurisprudence is obviously important in interpreting Convention rights (s.2(1) of the Act states that courts should take it into account) it is not strictly binding. Strasbourg rulings on the horizontality of Convention rights (Art.8, considered infra) are therefore not determinative and it is appropriate to make comparison with Bills of Rights from similar constitutional settings. It would also be appropriate to consider rulings from the courts of other member States of the Convention where the Convention rights have a comparable domestic status. Lack of space and of accessible material precludes further discussion of this issue.

15. Hohfeld, W. N., Fundamental Legal Conceptions as Applied in Judicial Reasoning(1923).Google Scholar

16. Judicial reference to (usually) Art.10 of the Convention in cases concerning breach of confidence or unfair dismissal of “whistleblowing” employees fits this analysis, although where disclosure of the source against a third party (e.g. a newspaper) is contemplated under s.10 of the Contempt of Court Act 1981 the State is more obviously involved. “Whistle-blowing” cases would fall into my categories (below) of indirect horizontally, in the case of development of the common law of breach of confidence, direct statutory horizontality, in the question of interpretation of unfair dismissal legislation (under the old law) or of the Public Interest Disclosure Act 1998 (under the new), or remedial horizontality, where disclosure of sources is concerned.

17. As recommended by the Calcutt Committee, op. cit supra n.1.

18. Hong Kong experience is worth briefly noting. Initial drafts of the Bill of Rights contained wording expressly binding persons acting in a private capacity: Hong Kong Bill of Rights Ordinance 1991, s.7. These, however, were diluted in the face of objections raised by the commercial sector and the final text bound only the government, public authorities and persons acting on their behalf: Byrnes, A., “The Hong Kong Bill of Rights and Relations Between Private Individuals”, in Chan, J. and Ghai, Y. (Eds), The Hong Kong Bill of Rights: A Comparative Approach (1993).Google Scholar The Hong Kong Court of Appeal has held that the effect of this provision is to prevent horizontal effect and that in effect it overrode a more general provision in the Ordinance requiring legislation which infringed a right to be repealed: Tam Hing-yee v. Wu Tai-wai [1992] 1 H.K.L.R. 185Google Scholar; see Ghai, Y., “Sentinels of Liberty or Sheep in Woolf's Clothing? Judicial Politics and the Hong Kong Bill of Rights” (1997) 60 M.L.R. 459, 466Google Scholar, and Byrnes, A. (1991) 21 H.K.L.J. 377.Google Scholar

19. Retail Wholesale and Department Store Union Local 580 et al v. Dolphin Delivery Ltd (1985) 33 D.L.R. (4th) 174Google Scholar, [1986] 2 S.C.R. 573Google Scholar. See Anderson, G. W., “The Limits of Constitutional Law: The Canadian Charter of Rights and Freedoms and the Public-Private Divide”, in Gearty, C. and Tomkins, A. (Eds), Understanding Human Rights (1996)Google Scholar; Hutchinson, A. and Petter, A., “Private Rights/Public Wrongs: The Libel Lie of the Charter” (1982) 38 Tor. L.J. 278Google Scholar; Slattery, B., “The Charter's Relevance to Private Litigation” (1987) 32 McGill L.J. 905.Google Scholar

20. Dolphin Delivery, idem (S.C.R.), pp.600–601. S.32(1) states: “This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province”.

21. Idem, pp.598–599.

22. [1990] 3 S.C.R. 229, 262.Google Scholar

23. Idem, p.263.

24. Idem, p.262.

25. Dolphin Delivery, supra n.19 (S.C.R.), at p.601.Google Scholar

26. R. v. Salituro [1991] 3 S.C.R. 654Google Scholar (common law rule prohibiting spouses, including irreparably separated spouses, from testifying against each other was found to be inconsistent with Charter values, especially equality of women and human dignity). R. v. Swain [1991] 1 S.C.R. 933Google Scholar (common law rule allowing the Crown to raise insanity defence, over objections by the accused, violated s.7 of the Charter and therefore modified to comply with Charter).

27. In Dagenais v. Canadian Broadcasting Corp [1994] 3 S.C.R. 835Google Scholar a broadcasting company challenged a publication ban which prevented them from broadcasting one of their programmes. It was held that where the common law rule on publication bans conflicted with Charter values, the common law rule must be varied in such a manner as to enable the court to consider both the objective of a publication ban and the proportionality of the ban's effect on protected Charter rights. See further Leigh, I., “Secret Proceedings in Canada” (1996) 34 Osgoode Hall L.J. 113, 121122.Google Scholar

28. B.C.G.E.U. v. British Columbia (Attorney General) [1988] 2 S.C R. 214 (common law rule giving rise to the picketing injunction breached s.2(b) but justified under s.1).Google Scholar

29. Lavigne v. Ontario Public Service Employees Union (1991) 81 D.L.R. (4th) 454Google Scholar, [1991] 2 S.C.R. 211Google Scholar (community college acting as “government” in collecting mandatory union dues in violation of s.2(d) (freedom of association), but limitation justified under s.1); McKinney v. University ofGuclph (1990) 76 D.L.R. (4th) 545Google Scholar, [1990] 3 S.C.R. 229 (university imposing mandatory age retirement policy not government action under s.32)Google Scholar; Stoffman v. Vancouver General Hospital (1990) 76 D.L.R. (4th) 700Google Scholar, [1990] 3 S.C.R. 483 (hospital not “government” in imposing age limit on access for doctors)Google Scholar; Eldridge v. AG of British Columbia (1997) 3 B.H.R.C. 137 (hospital subject to Charter in implementing government policy of ensuring all residents receive medical services free of charge).Google Scholar

30. Dolphin Delivery, supra n.19 (S.C.R.), at p.603.Google Scholar

31. See Craig, J. and Nolte, N., “Privacy and Free Speech in Germany and Canada: Lessons for English Privacy Tort” [1998] E.H.R.L.R. 162, 166167.Google Scholar

32. [1995] 2 S.C.R. 1130.Google Scholar

33. The relevant Charter provision is s.8, which provides security against unreasonable search and seizure. In Roth v. Roth (1991) 4 O.R. 740, 757Google Scholar, Mandel, J, (Ont CJ (Gen Div)) a provincial court held that there was a more general tort of infringement of privacy in Ontario, which s.8 recognised one aspect of.Google Scholar

34. 376 U.S. 254 (1964).Google Scholar

35. R. v. Oakes [1986] 1 S.C.R. 103.Google Scholar

36. 1996 (3) S.A. 850Google Scholar and see Cheadle, H. and Davis, D., “The Application of the 1996 Constitution in the Private Sphere” (1997) 13 S.A J.H.R. 44.Google Scholar For earlier academic discussion of potential horizontality see Van Aswegen, A., “The Implication of a Bill of Rights for the Law of Contract and of Delict” (1995) 11 S.A.J.H.R. 50Google Scholar; De Waal, J., “A Comparative Analysis of Provisions of German Origin in the Bill of Rights” (1995) 11 S.A J.H.R. 1, 915.Google Scholar

37. “this Chapter shall bind all legislative and executive organs of state at all levels of government”.

38. Also described in the judgments as “diagonal” effect, “seepage” or, borrowing from the German terminology, “radiating” effect.

39. Du Plessis, supra n36, at p.900.Google Scholar

40. Idem, pp.903 et seq.

41. Idem, p.910.

42. Idem, p.916.

43. Idem, pp.891–897.

44. Although Hohfeld is not cited, the similarity with the argument above is clear.

45. Du Plessis, supra n 36, at p.879.Google Scholar

46. Idem, pp.901–901

47. Idem, pp.925 et seq.

48. Constitution of the Republic of South Africa 19%, Chapter 2, Bill of Rights, s.8(2). In addition, s.9(4) imposes a specific duty on private individuals not to discriminate against others on a comprehensive set of grounds. See Cheadle, and Davis, , op. cit supra n.36, at pp.6065Google Scholar; Butler, A., “Private Litigation and Constitutional Rights under s.8 of the 1996 Constitution—Assistance from Ireland” (1999) 116 S.A.L.J. (forthcoming).Google Scholar

49. Cheadle and Davis, idem, p.66, describe the effect: “The potential for horizontal application calls into question the private/public divide which previously lay at the centre of the legal system. But it does so not by creating a direct, separate constitutional cause of action, but rather by ensuring that the newly created constitutional action must be mediated by our common law.”

50. In favour of direct horizontality it was argued: on textual analysis of the Constitution it was intended to apply to all forms of law as supreme law and that purposive interpretation of the Constitution required constitutional safeguards in private law because of the history of systematic oppression and discrimination under apartheid and before: Du Plessis, supra n.36, at pp.911et seq.Google Scholar (per Kriegler J). Against direct horizontality it was argued that on textual analysis the Constitution was not intended to treat the courts as governmental organs and that “teleological” interpretation of the Constitution showed an intention to treat the public and private spheres differently, with indirect horizontality applying to the latter idem, p.906 {per Ackermann J).

51. See Kentridge AJ (idem, pp.880 et seq.). However, Kriegler J, idem, p.919, argued that direct horizontal effect avoided anomalies in separating public and private law. Sachs J referred (idem, p.934) to the difficulties which the Constitutional Court would have in developing remedies in private law. This factor seems to have influenced the drafting of s.8 of the final version of the Constitution (supra).

52. S.3(1).

53. Du Plessis, supra n.36, at pp.906 and 931 respectively.Google Scholar

54. Butler, A., “The New Zealand Bill of Rights and Private Common Law Litigation” [1991] N.Z.L.J. 261Google Scholar; Rishworth, P., “The Potential of the New Zealand Bill of Rights” [1990] N.Z.L.J. 68Google Scholar; Chen, M., “Self-Regulation or State Regulation? Discrimination in Clubs” (1993) 15 N.Z.U.L.R. 421, 431436Google Scholar; Joseph, P., Constitutional and Administrative Law in New Zealand (1993), pp.855856.Google Scholar

55. R. v. Liddell [1955] 1 N.Z.L.R. 538, 546547 (per Cooke, J)Google Scholar; police v. O'Connor[ 1992] 1 N.Z.L.R. 87, 9799 (per Thomas, J).Google Scholar

56. R. v. Shaw, CA, 20 08 1991, cited in Joseph, op. cit supra, n.54, at p.855.Google Scholar

57. Auckland Area Health Board v. Television New Zealand [1992] 3 N.Z.L.R. 406, 407 (per Cooke P).Google Scholar

58. TV3 Network Ltd v. Eveready NZ Ltd [1993] N.Z.L.R. 435 (refusal to strike out application for corrective injunction).Google Scholar

59. Idem, p.441.

60. R v. H [1994] 2 N.Z.L.R. 143, 147148 (per Richardson, J).Google Scholar

61. idem, p.147.

62. [1997] 2 N.Z.L.R. 22Google Scholar; affirmed by the New Zealand Court of Appeal: Lange v. Atkinson (1998) 4 B.H.R.C 573.Google Scholar In the UK the Court of Appeal has declined to follow Lange on the scope of qualified privilege: Reynolds v. Times Newspapers [1998] 3 W.L.R. 862, 906–7.Google Scholar See also Loveland, I. “The Constitutionalism of Political Libels in English Law?” [1998] P.L. 633.Google Scholar

63. [1997] 2 N.Z.L.R. 22, 4547Google Scholar; and cf. the New Zealand Court of Appeal, supra n.62, at p.597 and pp.610612.Google Scholar

64. idem, p.32. In Duff v. Communicado Ltd [1996] 2 N.Z.L.R. 89, 99 Blanchard J stated: “contempt of court, like any other part of the common law, is subject to the Bill of Rights by virtue of s.3(a) thereof”Google Scholar

65. Clapham, A., Human Rights in the Private Sphere (1993), pp.341342.Google Scholar

66. Art.34 allows complaints by individuals, NGOs or groups of individuals claiming to be a victim of a violation “by one of the High contracting Parties”, and under Art.35 the Court shall consider an application inadmissible if it is incompatible with the Convention, manifestly ill-founded, or an abuse of the right of petition (references are to the text as amended by Protocol 11). See further Harris, , O'Boyle, and Warbrick, , Law of the European Convention on Human Rights (1995), pp.630638.Google Scholar

67. Airey v. Ireland, Ser.A, Vol.32, paras.31–32.Google Scholar

68. For a full account analysing the potential for horizontal effect of each art. of the Convention, see Clapham, op. cit. supra n.65, at chap.7; also Clapham, A., “The Privatisation of Human Rights” [1995] E.H.R.L.R. 20.Google Scholar

69. See generally Harris, , O'Boyle, and Warbrick, , op. cit. supra n.66, at pp.1922Google Scholar; esp. Airey v. Ireland, supra n.67; Marckx v. Belgium (19791980) 2 E.H.R.R. 330 on the scope of “respect for family life” in Art.8Google Scholar; and Lopez Ostra v. Spain (1995) 20 E.H.R.R. 277, paras.51–58 (State responsible under Art.8 for environmental pollution to neighbour from waste reprocessing plant since municipality allowed it to be built and failed to take legal action against it, but on the facts some direct State responsibility due to public subsidy)Google Scholar; see also Guerra and Others v. Italy (1998) 26 E.H.R.R. 357.Google Scholar

70. E.g. Art.11 violated by power of trade union: Young, James and Webster v. UK (1982) 4 E.H.R.R. 38Google Scholar; duty to take reasonable and appropriate measures to protect demonstrators from counter-demonstrators: Platform Ärzte für das Leben v. Austria, Ser.A 139 (1988).Google Scholar

71. X and Y v. The Netherlands, Ser.A 91 (1985), para.23.Google Scholar Cf. A v. UK, judgment of the European Court of Human Rights, 23 September 1998 in which the Court upheld the applicant's claim of a violation of Art.3 for which the UK was responsible, arising from corporal punishment administered by a child's stepfather, notwithstanding the acquittal of the stepfather on criminal charges arising from the incident. In view of its finding on Art.3, the Court did not find it necessary to conclude whether there had also been a violation of Art.8.

72. Winer v UK, 1986, Appl. No.10871/84, 48D. & R. 154.Google Scholar Cf. Stewart-Brady v. UK (Appl. Nos.27436/95 and 28406/95, admissibility decision 2 July 1997), N v. Sweden, Appl. No.11366/85 (admissibility decision of 16 Oct. 1986) and Earl and Countess Spencer v. UK Appl. Nos.28851/95 and 28852/95. See Naismith, S., “Photographs, Privacy and Freedom of Expression” [1996] E.H.R.L.R. 150, 157158.Google Scholar

73. Whiteside v. UK Appl. No.20357/92 (decision of 7 Mar. 1994); cf. V v. France, Appl. No.14636/89 (decision of 18 Oct. 1991).Google Scholar

74. JS v. UK, Appl. No.191173/91, 3 Jan. 1993 (clandestine surveillance by insurance company in connection with claim); Basson v. France, Appl. No.21120/93, 1 Feb. 1993 (tape recording of telephone conversation made by co-accused).

75. Feldman, D., “The Developing Scope of Article 8 of the European Convention on Human Rights” [1997] E.H.R.L.R. 265, 266267.Google Scholar

76. Cf. Lord Wilberforce in Blathwayt v. Baron Cawley [1976] A.C. 397, 426 (testamentary freedom not to be curtailed by development of public policy using Art.9 ECHR)Google Scholar and Lord, Woolf in Spring v. Guardian Assurance plc [1995] 2 A.C. 296, 352 (freedom of speech re reference to be balanced against common law freedom not to be deprived of opportunity of earning livelihood in chosen profession).Google Scholar

77. Art.8(2): “there shall be no interference by a public authority with the exercise of this right except.” This contrasts with the wording of Arts.9–11, which do not restrict the limitations to the actions of the State.

78. Powell and Rayner v. UK (1990) 12 E.H.R.R. 355, para.41Google Scholar; Lopez Ostra v. Spain, supra n.69, at para.51.

79. E.g. see Markt Intern, infra n.115. In Derbyshire CCv. Times Newspapers [1992]3 AU E.R. 65, 79 Balcombe LJ took this approach, arguing that both the court and the council were public authorities within Art. 10(2).Google Scholar

80. For a similar argument see The Hon. Sir John, Laws, “The Limitations of Human Rights” [1998] P.L. 254, 263264.Google Scholar

81. HL Hansard, Vol.585, cols.770 et seq. (5 02 1998)Google Scholar; HC Hansard, Vol.312, col.1014 (20 May 1998)Google Scholar; for analysis: Leigh, I., “Towards a Christian Approach to Religious Liberty”, in P. Beaumont, Christian Perspectives on Human Rights and Legal Philosophy (1998), pp.8399.Google Scholar

82. In Re Blainey and Ontario Hockey Assn. (1986) 54 O.R. (2d) 513 a statutory exemption in a non-discrimination statute was held to be incompatible with the Charter of Rights in a private claim.Google Scholar

83. The extent to which this is anomalous will in turn depend on whether there is in any given context much difference between direct horizontality and indirect horizontality (which will apply nevertheless).

84. However, a potential problem in the former case is that the Convention contains no right to employment as such.

85. Pt. II confers rights of subject access and of compensation, rectification and erasure for inaccuracy. See also Defamation Act 1996, s.2 (scope of the defence of “an offer to make amends”).

86. Protection from Harassment Act 1997, s.1(2) and (3)(c).

87. Halford v. UK (1997) 24 E.H.R.R. 523Google Scholar, para.48; however in Young, James and Webster, supra n.70, the Court argued that it was irrelevant to the question of violation of their rights under Art.11 that the applicants were State employees (of British Rail): para.49.

88. HL Hansard, Vol.582, col.1232 (3 11 1997) (per Lord, Irvine)Google Scholar; HC Hansard, Vol.314, cols.406 et seq. (17 06 1998) (per Rt Hon. Straw, Jack).Google Scholar

89. E.g. Rt Hon. Jack Straw, idem, col.406, “we wanted a realistic and modern definition of the state so as to provide correspondingly wide protection against abuse of human rights”.

90. R. v. East Berkshire, HA ex p. Walsh [1985] Q.B. 152.Google Scholar

91. Labour Party, Bringing Rights Home (1996), p.7.Google Scholar

92. Rights Brought Home, Cm.3782 (1997).Google Scholar

93. Cf. Osman v. UK (87/1997/871/1083) judgment of the European Court of Human Rights of 28 October 1998, in which the Court rejected, on the facts, the applicants' claims of violations of Arts.2 and 8 arising from police failure to protect the complainant from harassment and his father from being killed by a psychologically disturbed teacher. Domestic negligence proceedings had failed: Osman v. Ferguson and Comm. of Police for the Metropolis [1993] 4 All E.R. 344.Google Scholar However, the European Court of Human Rights found that the treatment by the Court of Appeal of the applicants' negligence action as effectively barred by the public policy exclusion amounted to a violation of Art.6(l).

94. Broadcasting Act 1990, S.143(1).

95. The government's view vacillated. The Lord Chancellor initially advised that the PCC would not be a public authority but later revised that opinion. In the Commons' Committee stage the Home Secretary expressed the considered view that the PCC would be a public authority, but that the press itself would not be (HC Hansard, vol.314, col.414 (17 06 1998)Google Scholar). It may still be argued, however, that the PCC is not a “public authority”: Wade notes its lack of coercive powers and doubts that complaint to the PCC would be regarded as an effective remedy for the purpose of Art. 13 (supra, n. 11, 64–65). Colin Warbrick has pointed out to me that a newspaper is free both to disregard the Commission and to leave its jurisdiction. In R. v. Press Complaints Commission, ex p. Stewart-Brady, 18 11 1996Google Scholar, CA it was held to be arguable that the PCC was subject to judicial review but that the court should not intervene for technical breaches of the Commission's Code. The Broadcasting Complaints Commission is subject to judicial review: R. v. BCC, ex p. Granada Television, The Times, 31 05 1993 (QBD)Google Scholar and R. v. BCC, ex p. Barclay [1997] C.O.D. 57.Google Scholar

Public liability horizontality might also arise in relation to the media: Lord Williams of Mostyn thought that the BBC and Channel 4 would be public authorities, but that some commercial television stations would not (HL Hansard, Vol.582, col.1309 (3 11 1997)Google Scholar). The position of the BBC has not been formally resolved under the ECHR jurisprudence: compare BBCv. UK (1996) 21 E.H.R.R. C.D. 97 (complaint manifestly ill-founded, no need to determine whether BBC entitled to complain)Google Scholar and Hilton v. UK, Appl. No.12105/86 (rejection of complaint based on vetting by BBC and Security Service).Google Scholar

96. See Kaye v. Robertson [1991] F.S.R. 62Google Scholar. However, such an action would not be effective to prevent publication by the third person.

97. R. v. Chief Constable of West Yorkshire, ex p. Govetl, QBD unrep. decision of 24 05 1994 (LEXIS), discussed in Taylor, N.Google Scholar and Walker, C., “Bugs in the System” (1996) 1(2) J. Civil Liberties, 105, 119.Google Scholar

98. S.6(3)(a). The remedies against judges found in contravention are restricted. The traditional guarantees of judicial independence are preserved: personal immunity from suit is guaranteed by s.9(3) and (4). Where the claim is against a court proceedings must be brought by the normal routes of appeal or judicial review respectively (s.9(l) and (2)).

99. It is noteworthy perhaps that Art.13 (guaranteeing an effective remedy) has been specifically omitted from the Convention rights incorporated under the Human Rights Act.

100. Z v. Finland (1998) 25 E.H.R.R. 371.Google Scholarcf. Hoffmann v. Austria (1994) 17 E.H.R.R. 293 (violation of Art.8 in conjunction with Art.14 in child custody decision).Google Scholar

101. Guardian and Observer v. UK (1992) 14 E.H.R.R. 229, paras.66–71Google Scholar; cf. Sunday Times v. UK where the European Court of Human Rights found that an injunction issued by the House of Lords violated Art. 10. On liability of member States for the actions of their courts under the Convention see generally Clapham, , op. cit. supra n.65, at pp.240244.Google Scholar

102. Tolstoy Miloslavsky v. UK (1995) 20 E.H.R.R. 442, paras.48–51.Google Scholar

103. Chappell v. UK (1990) 12 E.H.R.R. 38.Google Scholar

104. Hokkanen v. Finland (1995) 19 E.H.R.R. 139, paras.55, 6062Google Scholar; see also Airey v. Ireland, supra n.67.Google Scholar

105. In re H-S (Minors) (Protection of Identity) [1994] 1 W.L.R. 1141Google Scholar; R. v. Central Independent Television [1994] 3 W.L.R. 20Google Scholar; Re W (Wardship Discharge: Publicity) [1995] 2 F.L.R. 466Google Scholar; and see Middlebrook Mushrooms v. Transport and General Workers' Union [1993] I.CR. 612.Google Scholar For discussion: Hunt, M., Using Human Rights Law in English Courts (1997), pp.191196.Google Scholar

106. See supra n.7

107. Khorasandjian v. Bush [1993] Q.B. 727Google Scholar (private nuisance, but overruled in so far as it purported to extend nuisance to non-property holders by Hunter v. Canary Wharf [1997] 2 W.L.R. 684, HL).Google Scholar

108. Burris v. Adzani [1995] 1 W.L.R. 1372 (made under general discretion to give interlocutory relief: Supreme Court Act 1981, s.37).Google Scholar

109. AG v. Guardian Newspapers (No.2) [1990] 1 A.C. 108, 283.Google ScholarCf. Butler-Sloss, LJ and Lord, Keith in Derbyshire CC v. Times Newspapers [1993] 3 All E.R. 65, 93Google Scholar and [1993] 1 All E.R. 1011, 1021 respectively.Google Scholar

110. The High Court satisfied itself that there was no breach of the Convention in R. v. Bow Street Magistrates Court, ex p. Choudhury [1990] 3 W.L.R. 986, 1001 although the common law offence of blasphemy was not uncertain.Google Scholar

111. Guardian Newspapers (No.2), supra n.109, at p.283 (per Lord, Goff)Google Scholar; Derbyshire CC, supra n.109, at p.1021 (per Lord, Keith).Google ScholarLikewise, Lord, Oliver equating Art.8 and the best interests of the child test in wardship in Re KD [1988] 1 All E.R. 577, 588.Google Scholar

112. In R. v. Mid Glamorgan HSA, ex p. Martin [1995] 1 W.L.R. 110Google Scholar the Court of Appeal used Art.8 and related jurisprudence to interpret the common law duty of a health authority to give a patient access to his meical records (Nourse, LJ, p.116Google Scholar and Evans, LJ, p.118)Google Scholar; Nourse, LJ found that a private doctor in a contractual relationship with the patient would have been in the same position (pp.116117).Google Scholar In Watts v. Tunes Newspapers [1996] 2 W.L.R. 427, 443 Hirst LJ rejected the argument that the burden of proof upon a defendant in a defamation action to establish a defence of qualified privilege violated Art.10.Google Scholar In Spring v. Guardian Assurance pic [1995] 2 A.C. 296, 326 Lord Lowry rejected the argument that Art.10 should act as a shield to a claim of negligence in giving an employment reference.Google Scholar

113. Text accompanying supra n.32.

114. At Strasbourg “broadly similar” approaches may be applicable to limitations of rights under Art.8 depending on whether the State's negative or positive obligations are involved: Powell and Rayner v. UK (1990) 12 E.H.R.R. 355, para.41.Google Scholar

115. In Markt Intern v. Germany (1990) 12 E.H.R.R. 161Google Scholar, para.27 the European Court of Human Rights found that an injunction issued by a German court in a private competition case was an interference by a public authority with freedom of expression, but held that it was prescribed by law and for a justified reason.

116. Art.13: Soering v. UK, Ser.A 161, para.121 (1989)Google Scholar, holding that judicial review gave sufficient opportunity (criticised in Harris, , O'Boyle, and Warbrick, , op. at supra, n.66, at pp.451—456).Google Scholar

117. S.6{5).

118. Prior to incorporation the Court of Appeal held in F v. Wirral MBC [1991] Fam. 99Google Scholar that recognition under Art.8 of parental rights of access to a child did not of itself establish a cause of action for damages in tort for interference with the right (Ralph Gibson LJ at 110). The line between establishing a new cause of action and expanding an existing one can, however, obviously be a fine one: see Hunter v. Canary Wharf, supra n.107, at p.698Google Scholar, where Lord Goff characterised the proposed extension of standing in private nuisance to licensees as the “back door” creation of a tort of personal harassment. Lord, Cooke of Thomdon (dissenting, at pp.715716)Google Scholar, on the other hand, referred to Art.8 ECHR in support of giving nuisance an extended interpretation, beyond those holding a legal interest in land.

119. HL Hansard, Vol.583, cols.781–782 (Lord, Wilberforce)Google Scholar and 785 (Lord, Irvine of Lairg) (24 11 1997).Google Scholar

120. Malone v. Metropolitan Police Commissioner (No.2) [1979] Ch. 344.Google Scholar

121. R. v. Khan [1996] 3 All E.R. 289.Google Scholar The trial judge when exercising the discretion under s.78 could (but was not bound to) have regard to Arts.6 and 8 of the Convention. Their Lordships cited Schenk v. Switzerland (1988) 13 E.H.R.R. 242Google Scholar in which the European Court of Human Rights found no breach of Art.6 in admitting unlawfully obtained evidence on the facts (Lord, Slynn of Hadley, p.292Google Scholar and see Lord, Nolan pp.300301Google Scholar, Lord, Nicholls, p.302Google Scholar); the speeches show little awareness that Schenk was decided under the margin of appreciation and thai a trial judge applying the Convention would be in a different position. See also R. v. Chalkley [1998] 2 All E.R. 155.Google Scholar

122. R. v. Secretary of State for Defence, ex p. Smith [1996] 2 W.L.R. 305, 340 (per Lord, Bingham MR)Google Scholar; 345 (per —affirming the approach of Simon Brown LJ at first instance, who argued that the nature of the exercise would have been different (what he described as “primary review”) if the Convention had been incorporated: idem, pp.322–328) and 346 (per Thorpe LJ). Contrast Morris v. Beardmore [1980] 2 All E.R. 753, 763 where Lord Scarman supported a restrictive interpretation of police breathalyser powers by reference to Art.8.Google Scholar

123. R. v. Chief Constable of N Wales Police, ex p. AB [1998] 3 W.L.R. 57Google Scholar (CA) affirming R. v. Chief Constable of North Wales, ex p. AB [1997] 3 W.L.R. 724, 736 (per Lord, Bingham MR)Google Scholar and 738 (per Buxton J) (on which see Barber, N. [1998] P.L. 19, 2324Google Scholar and Mullender, R. [1998] P.L. 384).Google Scholar

124. Winer v. UK, supra n.72.

125. Wacks, R., Privacy and Press Freedom (1995).Google Scholar

126. A similar conclusion has been reached, albeit by a different route, by Murray Hunt in a recently published article. He argues that the Human Rights Act 1998 does not require the creation of new causes of civil action but that it is consistent with a form of horizontality which (following Kriegler J in Du Plessis, n.36 supra) he terms an “application to all law” model: Hunt, M., “‘The Horizontal Effect’ of the Human Rights Act” [1998] P.L. 423.Google Scholar

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