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Judicial reasoning in breach of confidence cases under the Human Rights Act : not taking privacy seriously ?

Phillipson, G. (2003) 'Judicial reasoning in breach of confidence cases under the Human Rights Act : not taking privacy seriously ?', European human rights law review. (Supplement). pp. 54-72.

Abstract

Criticises the legal reasoning applied by the Court of Appeal in A v B Plc in respect of two key issues around the development of a right to privacy under the European Convention on Human Rights 1950 Art.8, as applied under the Human Rights Act, arguing that the judgment exposes an unwillingness by the Court to deal with the complexities of Convention based case law or general principles. Explores in detail: (1) the horizontal application of Art.8 in cases concerning media intrusion and specifically, in A v B Plc, whether the State's positive obligations under Art.8 require the courts to offer a remedy against intrusion into private life by a non state actor; and (2) the circumstances in which the public interest justification for publication may outweigh the right to respect for private life in respect of the Court's approach to the question of public interest in "public figures" and the argument about role models and the public's "right not to be misled". Suggests that the Court's mere assertion that the rights under both Arts.8 and 10 can be absorbed into the long established action for breach of confidence means that the decision lacks both force and content, and that the failure to clarify the specific duties in relation to media intrusion has left considerable uncertainty as to the scope of the courts' obligation under Art.8 to respect private life. Considers, in respect of the public interest in disclosure argument, that the Court of Appeal's approach in both A v B Plc and in Theakston v MGN Ltd displays a reluctance to adopt an approach to the analytical and normative reasoning demanded by the human rights context introduced by the 1998 Act and that the effect is that the arguments and dicta emerging from the judgment run counter to values underpinning domestic law and the European Court of Human Rights case law, values which the courts are bound to uphold.

Item Type:Article
Additional Information:Special issue : Privacy 2003.
Keywords:Breach of confidence, Celebrities, Freedom of expression, Legal reasoning, Newspapers, Privacy, Public interest, Right to respect for private and family life.
Full text:Full text not available from this repository.
Publisher Web site:http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?recordid=388&productid=6823
Record Created:18 Jul 2011 10:50
Last Modified:04 Aug 2011 15:01

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