APPENDICES
¶3.94 The interaction between Articles 8 and 10 was explained by Lord Nicholls in Campbell v MGN
Ltd:219 "Article 8(1) recognises the need to respect private and family life. Article 8(2) recognises there are occasions when intrusion into private and family life may be justified. One of these is where the intrusion is necessary for the protection of the rights and freedoms of others. Article 10(1) recognises the importance of freedom of expression. But article 10(2), like article 8(2), recognises there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way. When both these articles are engaged a difficult question of proportionality may arise. This question is distinct from the initial question of whether the published information engaged article 8 at all by being within the sphere of the complainant's private or family life."
¶3.95 Lord Steyn in Re S (A Child) (Identification: Restrictions on publication) noted that neither
Article 8 nor Article 10 has precedence over the other and that where the values protected by the two articles are in conflict an intense focus on the comparative importance of the rights being claimed is necessary. Further, the justification for interfering with or restricting each right must be taken into account and finally the proportionality test must be applied to each (also known as the ultimate balancing test). In conducting this balancing exercise, the courts have acknowledged that this process will require an "intense focus on the facts of the individual case".220
¶3.96 On the Article 8 side, the more intimate the aspect of private life that is interfered with the more
serious must be the reasons for the interference before the restriction can be legitimate.221 When striking a balance between competing rights the court is not restricted to considering the Article 8 rights of the claimant and the defendant but should take into account the extent to which other individuals would be affected by publication; for example the claimant's family.222 In many cases the claimant's privacy interests will align with those of their family and the rights of family members may have a significant impact in determining these issues.
¶3.97 On the Article 10 side, different types of speech have varying levels of protection. Lady Hale
in Campbell explained that political speech is top of the list and that the free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy and that without this, it can scarcely be called a democracy at all. Further, intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of the potential for an individual to play a full part in society, including in democratic life. Artistic speech and expression is important for similar reasons; fostering both individual originality and creativity and the free‐thinking and dynamic society we so much value. Lady Hale doubted whether the political and social life of the community and the intellectual, artistic or personal development of individuals is assisted by poring over the intimate details of a fashion model's private life, for example.223
¶3.98 Thus, as a matter of approach, there is a hierarchy of both privacy interests and of freedom
1883of expression rights. The more intimate the nature of the information and the closer the information is aligned to Article 8, the greater weight the court will accord to the information
¶Appendix 4 | Legal Materials
in the balancing exercise. Similarly the more important the nature of speech being exercised, the more weight will be given to this.
¶3.99 In Von Hannover v Germany (No 2), various factors were identified by the Court as being
relevant to the consideration of how the competing Convention Articles could be balanced. These included: the status of the person concerned (distinguishing between private individuals and persons acting in an official or public context such as politicians), the subject matter of the report (distinguishing between the press as a public watchdog and as a reporter of private facts about well known people), the prior conduct of the person concerned (noting that simply because an individual has co-operated with the press does not deprive them of privacy) and the form or content of the publication and its consequences.224 The ECtHR in Axel Springer, identified similar factors as relevant to the "criteria for the balancing exercise": (1) contribution to a debate of general interest, (2) how well known the person concerned was and what was the subject matter of the report, (3) the prior conduct of the person concerned, (4) the method used to obtain the information and its veracity, (5) the content form and consequences of the publication, and (6) the severity of the sanction imposed.225
¶Public interest in publication 3.100 The most significant factor in the balancing exercise is the extent to which the information
sought to be disclosed can truly be said to make a contribution to a debate of general interest. For example, the contribution that the published information would make to a debate of general interest was treated as the decisive factor in ETK v NGN Ltd.226
¶3.101 Two key issues need to be considered in this context, namely what is meant by "public interest" and who the arbiter of the meaning of public interest is.
¶3.102 The meaning of "public interest" is hard to pin down. The courts have drawn a distinction
between matters which contribute to a debate on matters in the public interest and matters which are simply of interest to some members of the public. A striking and oft-quoted aphorism in this context is the observation of Lord Wilberforce in British Steel v Granada Television, that "there is a wide difference between what is interesting to the public and what is in the public interest to make known".227 A statement to a similar effect is that of Stephenson LJ explained in Lion Laboratories v Evans, "the public are interested in many private matters which are no real concerns of theirs and which the public have no pressing need to know".228
¶3.103 In Goodwin v NGN Ltd the Court found there to be a public interest in disclosure, not because
1884the publication would expose serious impropriety or crime but because it is in the public interest that there should be public discussion of the issues raised by the publication, namely the circumstances in which it is proper for a person holding public office or exercising official functions to carry on a sexual relationship with an employee in the same organisation.229 It was held that:230