Human Rights laws play an important role in ensuring that the rights of Individuals are respected above all else. This paper will analyse the role Human Rights laws have had in ensuring that the rights of the individual are protected above all else and will ask whether this is always the case and will focus on the issue of privacy and the regulation of family discipline. The paper will be concerned primarily with the United Kingdom and will begin with a brief overview on human rights. The concept of Human Rights as we understand them today have their origins in the United Nations Declaration on Human Rights 1948 (UNDHR) and are basic freedoms (such as the right to life) that all people irrespective of a person’s sex, gender or race, have by virtue of being ‘human’. These rights are universal in that they apply to everyone, inalienable in that they cannot be taken away and finally there are indivisible in that human rights cannot be seen in isolation. The UNDHR helped to develop the formation of the ECHR; this in turn influenced the creation of the Human Rights Act 1998. Privacy in its broadest sense is the ability for an individual to conduct their life without interference from other people, including the state and is concerned with the handling and control of personal data. Privacy is thus essential for forging social relations with others. However, the right to privacy enshrined in Article 3 of ECHR can conflict with the right to freedom of expression as defined in Article 10 of ECHR. A recent example of which can been seen in the case of R v Secretary for State for the Home Department, ex parte Simms and Others [2000] 2 AC 115. The UK in contrast to other jurisdictions, for example the Unites States, the ‘right to privacy’ is not however enshrined in law. This opens the questions as to what measures are in place to safeguard a person’s right to ‘privacy’ in the UK. There are two ways a person’s privacy can be protected in the UK; one is the through seeking a breach in what is known as the ‘right to confidence’, a common law principle and the other is through Article 8 of the ECHR. The ‘right to confidence’ is a mechanism whereby individuals protect their personal information misused by other people, which could for instance be detrimental to the person who owns the information. A recent example can be seen in the case of Stephens v Avery [1988] Ch 449, which prevented the disclosure of a women’s sexuality. The judgment in Stephens v Avery is significant as “the mere fact that two people know a secret does not mean that it is not confidential”, even if the owner of the information was the one who informed the other. The case of Coco v A N Clark (Engineers) Ltd [1969] RPC 41 lays down the conditions, which are needed to be established by the claimant to in order to satisfy a ‘breach of confidence’. These being that information must be confidential in nature, that the information must have been provided where there was an implied obligation of confidence and the finally there must be an unauthorised use of the information detriment to the party communicating it. However even if these conditions have been met by the claimant the right to confidence can nevertheless be restricted, as seen in the ruling made in Attorney General v Guardian
Newspapers [1990] 1 AC 109, where Lord Goff laid down the criteria whereby the right to confidence would not be applicable. For instance if the information was already in the ‘public domain’, that the information is in the ‘public interest’ and whether or not the information is of a ‘trivial’ nature. Although what constitutes trivia is not adequately defined by Lord Goff. Campbell v Mirror Group Newspapers (MGN)Ltd [2002] All ER (D) 448 and Douglas and other v Hello! Ltd [2001] WLR 992 are two recent court cases whereby the right to confidence has been used as a means to protect one’s privacy and the where the judiciary have ruled in the claimant’s favour. Both of these cases focused on the taking of unauthorised photographs in what was later accepted to be a private setting (a drug clinic in former and a wedding in the later). The ruling of Campbell v Mirror and Douglas, show that a duty of confidence exists even if confidential information is subsequently passed to the media. However, the courts are not willing to limit the right to freedom of expression of the press if what is involved is a transient or illicit sexual liaison, as seen in A v B plc and C [2002] 1 FLR 179 and the failed attempt by Lord Coe in getting an injunction issued to prevent the reporting that he had an extramarital affair. The difference would suggest that in the case of Campbell and Douglas there were ‘significant countervailing interests’ which the courts were willing to protect; in the case of Campbell her integrity that she had sort medical treatment for her drug addiction and in the case Douglas the protection of the couple’s commercially sensitive information; the couple’s wedding photographs which had a considerable market premium. However, in neither case has the ‘right to privacy’ been formally established in law. Although what these cases do show in particular Campbell is that while there is no formal law of privacy there has nevertheless have been a number of judicial developments in relation to the law of confidence, allowing disputes concerning the issue of privacy to be settled as a breach in a ‘duty of confidence’. The ‘duty of confidence’ has also been used by the courts to restrict the publication of an individual’s identity, if such a disclosure would be detrimental to the individual’s well-being, an example can be seen in Venables and Another v News Group Newspaper Ltd [2001] 151 NLJ 57. As mentioned earlier, an individual’s privacy can also be protected through Article 8 of the ECHR. Article 8 covers four related areas, these being private life, family life, the home and correspondence. Article 8 also protects the individual from excessive state interference, except in times of an emergency or is in the ‘national interest’ as described in Article 8(2). Private life is perhaps the hardest to quantify due to its board nature although, it is widely understood to relate to a ‘private space’ whereby an individual can develop their own personality and forge relations with others (Arthur, p.107, 2010). There been a number of legal challenges made to the European Court of Human Rights (ECtHR) by individuals who have argued that their rights under Article 8 have been violated and where the Court has ruled in the claimant favour. These have included the use of CCTV imaging as seen in the case of Peck v United Kingdom [2003] ECHR 36022/97 where the ECtHR ruled that a public setting does not prevent an act being private, to issues relating to an individual’s sexual orientation as
seen in Dudgeon v United Kingdom [1983] ECHR 7525/76 where the Court ruled that the state’s prohibition of homosexual acts between consenting adults was a direct violation of Article 8, to issues concerning excessive police surveillance as in the cases of Malone v United Kingdom [1984] ECHR 8691/79 and Perry v United Kingdom ECHR [2003] 63737/00. As mentioned, Article 8(2) can restrict an individual’s ‘right to privacy’ if this would be in the ‘national interest’. A recent example is illustrated in the case of Hatton and Others v United Kingdom [2003] ECHR 36022/97. The case centred around the use of night flights that were causing ‘excessive noise disturbance’ which the claimants argued not only impeded on their quality of life but also on their a ‘private life’, in particular the claimants argued drawing on the ruling made in Dudgeon v United Kingdom that such disturbances were having an adverse effect on intimacy, in particular that of sexual intimacy. However, due to the small number of complaints and that night flights were regarded as an economic necessity, the ECtHR ruled in favour of the UK Government, arguing that that such disturbance did not contriving Article 8; thus giving the UK a wide “margin of appreciation”. The minority in Hatton have argued that the ruling made by the ECtHR is a ‘step backwards’ in the development of Human Rights legislation as the UK failed to safeguard the right to a ‘healthy environment’ which was argued to be a precondition to the notion of any meaningful privacy (which includes acts of intimacy between people). While dissenting opinions are not legally binding such views articulate a valid criticism, which may exert a persuasive argument in future cases. Attention will now focus on the role human rights laws have had on the regulation of family discipline. Currently the law in England and Wales allows parents to use physical force as a means of correcting their children. A parent may inflict physical punishment on their children if the parent is able to satisfy the test of ‘reasonable chastisement’. The question of ‘reasonable chastisement’ was examined in the case of R v Hopley [1860] 2 F&F 202, which stated that ‘reasonable chastisement’ must not be used to satisfy rage or passion nor must it be ‘excessive’ in nature and must not endanger the child. In A v United Kingdom [1998] 27 EHRR 611 the ECtHR challenged the defence of ‘reasonable chastisement’ arguing that this principle did not accord sufficient protection for children. Despite this, the court did not take the view that the use of physical punishment necessarily amounted to a breach of Article 3 of the ECHR, which safeguards individuals from ‘cruel or degrading treatment’. The case of A was however instrumental in the UK Government enacting the Children Act 2004, which under s.58 removed the defence of ‘reasonable chastisement’ if a parent was charged under s.47 of the Offences Against the Person Act 1861. The restriction of the defence of ‘reasonable chastisement’ following A can be contrasted with the case of R v Secretary of State for Education and Employment ex parte Williamson and Others [2005] UKHL 15 which examined the legality of prohibiting corporal punishment in schools. Despite objections raised by a number of religious schools that the prohibition of corporal punishment prevented them from exercising their right to freedom of religion as expressed in
Article 9 of the ECHR (corporal punishment it was argued was central to the school’s religious ethos), the Law Lords upheld the Government’s position that banned corporal punishment in schools. Critics have argued however that the Children Act 2004 does not go far enough as the defence of ‘reasonable chastisement’ is still available for ‘common assault’, which would include ‘smacking’. Such critics have consistently made the argument that the UK should adhere to international obligations and outlaw the use of corporal punishment within the home, as seen in Israel following the ruling made in Plonit v AG Israeli Supreme Court Criminal Appeal 4596/98 54(1) PD 145. This paper has demonstrated that there have been occasions when the rights of individuals have to be balanced against other considerations and rights. This can clearly be seen in the dichotomy of privacy and freedom of expression. In addition, the rights of the individual (and indeed the community) as seen in Hatton can also be restricted if such rights conflict with the wider ‘national interest’. With regard to the regulation of family discipline, human rights laws have played a significant role in getting the practice of corporal punishment in the home outlawed in most countries. However, the fact that ‘reasonable chastisement’ is still an option in the UK would suggest that children at the very least are accorded different rights to adults and thus do not have full equality under the law. The individual is the benchmark to any human rights legislation however, the complexities of society and the development of other rights has meant that the individual is often engaged in trade-off between the rights of others and the state. Word count 1995
Bibliography Sources obtained from the Open University course book – Block 6 Arthur, R, (2010) ‘Unit 21 privacy rights’, Block 6 Rights, W100 Rules, rights and justice, Milton Keynes, The Open University, pp.90 – 120 International Treaties and Conventions European Court of Human Rights, 2010, Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols Nos. 11 and 12 (European Convention on Human Rights) [online] available at: <http://www.echr.coe.int/NR/rdonlyres/D5CC24A7DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf> [Accessed 19th August 2011] United Nations Declaration on Human Rights 1948 [online] available at: < http://www.un.org/en/documents/udhr/index.shtml> [Accessed 19th August 2011] Statute Children Act 2004, (c.31), HMSO, London. Offences Against the Person Act 1861 (c.24 & 25 Vict. c.100) UK Case Law A v B plc and C [2002] 1 FLR 179 Attorney General v Guardian Newspapers [1990] 1 AC 109 Campbell v Mirror Group Newspapers (MGN) Ltd [2002] All ER (D) 448 Coco v A N Clark (Engineers) Ltd [1969] RPC 41 Douglas and other v Hello! Ltd [2001] WLR 992 R v Hopley [1860] 2 F&F 202 R v Secretary of State for Education and Employment ex parte Williamson and Others [2005] UKHL 15 R v Secretary for State for the Home Department, ex parte Simms and Others [2000] 2 AC 115 Stephens v Avery [1988] Ch 449 Venables and Another v News Group Newspaper Ltd [2001] 151 NLJ 57 European Case Law A v United Kingdom [1998] 27 EHRR 611 Dudgeon v United Kingdom [1983] ECHR 7525/76 Hatton and Others v United Kingdom [2003] ECHR 36022/97 Malone v United Kingdom [1984] ECHR 8691/79 Peck v United Kingdom [2003] ECHR 36022/97 Perry v United Kingdom [2003] ECHR 63737/00 Foreign jurisdiction Plonit v AG Israeli Supreme Court Criminal Appeal 4596/98 54(1) PD 145