The right to privacy is coming to the United Kingdom: balancing the individual's right to privacy from the press and the media's right to freedom of expression.

• Author: Haenggi, Sara

1. INTRODUCTION

   On January 25, 1990, Gorden Kaye, a well-known English actor, was in an automobile accident in which he sustained substantial head injuries.(1) While recovering from brain surgery in the hospital, journalists gained unauthorized access to his private room and interviewed and photographed him in his debilitated state.(2) Kaye asked for "an interlocutory injunction to prevent publication [of the article and pictures,] alleging malicious falsehood, libel, passing off and trespass to the person."(3) He was granted the injunction,(4) but on appeal, Judge Glidewell replaced the lower court's injunction with one less restrictive. He said:

   It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.(5) Currently there is no domestic legal recourse in the United Kingdom for a person in Kaye's circumstances,(6) but this state of affairs is soon to change. On November 9, 1998, Parliament passed The Human Rights Act of 1998,(7) which incorporated the European Convention on Human Rights (ECHR)(8) into domestic law.(9)The ECHR guarantees individuals a general right to privacy,(10) as well as the right to freedom of expression.(11) Although originally meant to protect an individual's human rights from violations by the State, the ECHR could be interpreted to protect the individual's rights from violations by nongovernmental entities such as the press.(12) This interpretation would give a person in Kaye's situation a legal remedy.(13)

   The untimely death of Princess Diana led to the public condemnation of the press for their alleged role in the accident.(14) This tragedy cemented the public's view that the press had grossly overstepped its bounds for invading a person's privacy for no other reason than its own financial profit.(15) Diana's death and the incorporation of the ECHR into UK domestic law mean that the right to privacy will most likely result in the development of laws governing invasive intrusions on individuals by nongovernmental entities such as the press.(16) It is far from settled, however, what shape this law will take.(17)

   The first part of this Comment discusses whether the ECHR rights embodied in the Human Rights Act should have a higher, more protected status than other statutory rights. A brief description of the origins and structure of the ECHR is given, detailing the provisions of the right to privacy and freedom of expression. The paper then examines two models that other countries used to establish their own versions of the rights embodied in the ECHR, and analyzes the impact of each model on the citizens, government, and legal systems of the United Kingdom. This section concludes by observing how future changes to the international ECHR might impact domestic UK law.

   The issue of whether a right to privacy exists, especially from invasions by the press, is the subject of the second part of this Comment. The unjustified invasion of a person's right to privacy by the press is a growing and important problem.(18) In fact, some aspects of a privacy right have been recognized and protected by UK law, although different terminology and legal constructs have been used.(19) However, case law, such as Kaye v. Robertson, illustrates that the existing remedies for violation of this right to privacy do not adequately protect the individual from unjustified, invasive journalistic tactics.(20)

   Recognizing the need for an adequate remedy, this Comment addresses whether laws implementing this new right to privacy should be established by the British Parliament or courts. After examining the difficulties in defining the broad concept of a right to privacy, the Comment analyzes the present stances of the press, government, and judiciary as well as the arguments for and against the protection of privacy interests in each of these arenas. Concluding that privacy law will be developed as a result of incorporation of the ECHR, the suggestion is made that a common standard of acceptable press behavior be enforced Europe-wide by the Member States of the European Community.

2. INCORPORATION OF THE EUROPEAN CONVENTION OF HUMAN RIGHTS INTO BRITISH LAW

   1. Background and Nature of ECHR

      The ECHR was signed in Rome on November 4, 1950 and went into force September 3, 1953(21) with the goal to protect, at an international level, human rights from violations by a State and to provide collective international enforcement of these rights.(22) In this respect the ECHR diverges from traditional concepts of international law in that it does not concern reciprocal engagements between contracting states.(23) Rather, it concerns the relationship between the State and the individual's human rights within a State's jurisdiction, regardless of the individual's nationality or residency.(24)

      This constitutional-like nature is consistent with the dynamic method of interpretation that has been used to achieve the ECHR's purpose of protecting individual liberties.(25) The Convention imposes on each contracting State(26) the duty to guarantee to each person in its jurisdiction the rights and freedoms in the ECHR.(27) Among these guaranteed rights are the right to privacy and the right to freedom of expression, established respectively, in Article 8(28) and Article 10(29) of the ECHR.

      The interpretation and application of the guaranteed rights are not straightforward processes. There are several important considerations in interpreting the content and application of the ECHR. As previously stated, when interpreting the meaning of the guaranteed rights, the dynamic nature of the constitutional-like ECHR is to be considered.(30) Generalized terminology is used to enhance its dynamic nature to allow the ECHR to function as a living document, with its meaning fluctuating as political, social, and cultural norms change.(31)

      Another important aspect when interpreting the ECHR is determining to whom the ECHR applies. It is clear from the origins of the ECHR that the primary intent was to protect individual rights from abuses by the State.(32) It is not as clear whether the ECHR can be used to govern relations between individuals.(33) In support of this proposition is the Doctrine of Drittwirkung, the basic premise of which is that human rights have an absolute effect when defined in constitutions.(34) By accepting that the ECHR is a constitutional document, its guaranteed fundamental rights are enforceable against private individuals as well as public institutions.(35) It can further be argued that the guaranteed rights of the ECHR are applicable to violations instigated by individuals under Article 1 if one concludes the Article imposes on the State the obligation to protect rights from any infringement, public or private, within its jurisdiction.(36)

   2. What Led to Incorporation

      British citizens have only been able to enforce a privacy interest(37) by applying to have their case heard by the European Court of Human Rights in Strasbourg.(38) This extremely lengthy process(39) discourages aggressive litigation of human rights by UK citizens.(40) However, the inadequacy of this method to enforce privacy rights is not the main factor in the willingness of the United Kingdom to finally incorporate the ECHR into domestic law.(41)

      In fact, there has been a movement for the last thirty years to incorporate the ECHR into domestic law,(42) but attempts have been unsuccessful until now.(43) Failure to incorporate the Convention was largely due to the unwillingness of the Conservative Party to relinquish one iota of parliamentary control.(44) With the election of Tony Blair and his Labour government, this viewpoint changed.(45) As part of his constitutional program,(46) Blair forged ahead with the incorporation of the ECHR, radically compromising the status quo of long-lived parliamentary sovereignty for the idea that "any government that wants to change Britain for the better has to care about political renewal."(47) Having decided to adopt the ECHR provisions, the question becomes how to incorporate these rights into British law; are these rights superior to or equal to existing statutory law?

   3. Canadian and New Zealand Models

      Parliament considered two models in determining the weight to give these new statutory rights.(48) The choice is quite significant for several reasons. It determines whether individuals will be able to enforce their fundamental rights in `domestic courts or whether they will, in some cases, still need to make application to the Commission in Strasbourg.(49) The choice also determines if the national courts will give a higher status to the adopted ECHR provisions than to other domestic legislation.(50) The two models considered were the Canadian model(51) and the New Zealand model.(52)

      In Canada, the people's fundamental rights are included in the Canadian Charter of Rights and Freedoms.(53) If there is a conflict between Charter rights and other legislation, precedence is given to the Charter.(54) However, parliamentary sovereignty is still maintained, since in the event of a conflict, the missing rights are read into the statute, or it is clearly stated that in specific circumstances the statute does not apply.(55) Parliament is then free to change the statute so that it complies with the court's ruling, or to specifically state that the statute applies despite the violation of human rights.(56) The main advantage to this model is that the courts can expedite the judicial process, having the ability to modify legislation that violates guaranteed rights.(57) This model also serves as a political check on Parliament, since Parliament must clearly state in its legislation if a new law may violate human rights, seemingly something...