General principle:
The principle of proportionality imposes on contracting States, when pursuing a legitimate aim, to consider using the less restrictive measures in order to justify interferences to a conditional right.
Name:
Goodwin v. The United Kingdom, no 17488/90, 27/03/1996, ECHR
Facts:
This case concerned a disclosure order granted to private company requiring a journalist to disclose the identity of his source. A fine was subsequently imposed on the journalist for having refused to disclose the identity of his source.
Ratio:
The Court in Goodwin v The United Kingdom concluded that there was not, in sum, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim. The restriction which the disclosure order entailed on the applicant journalist’s exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 (art. 10-2), for the protection of Tetra’s rights under English law, notwithstanding the margin of appreciation available to the national authorities.
Application:
In this case, the Court developed the idea of proportionality as a concept imposing on contracting States to refrain from taking measure that are not strictly necessary to achieve the legitimate aim invoked. If there was a suitable alternative less restrictive to the applicant’s rights and the responding State did not make a reasonable use of it, the Court will certainly declare the interference disproportionate.
In addition to this, the Court observes that the nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (Sürek V. Turkey (No. 1), no 26682/95, 08/07/1999, ECHR). Accordingly, a fine of a significant amount of money or a very restrictive measure in terms of its impact on the applicant’s rights, will generally speak in favour of the disproportionate nature of the interference to the legitimate aim.
Analysis:
It may be submitted that the first successful international human rights case which was based on the issue of sexual orientation which was taken under the European Convention on Human Rights that focused on the privacy of same sex relations is that of Dudgeon v United Kingdom [1981] ECHR 5 in which it was held that the criminalisation of such practices was considered as a violation of protection of privacy under article 8 of the European Convention on Human Rights. The European Court of Humans Rights also further recognised the privacy protection under the ECHR for transsexual people as can be seen in the cases of I v United Kingdom and Goodwin v United Kingdom [2002] IRLR 664, these cases involved male to female transsexuals that claimed the UK refused to alter their legal identities in order to correspond with their newly acquired genders and therefore constituted discrimination. The court in these cases overturned previous decisions and went further to hold that their right to respect their private lives and their rights to marry had undoubtedly been violated under article 8 and 12 of the European convention on Human Rights. This is a good example of how the laws in the UK have changed over the years and developed in recognising transsexuals and according them with the same rights as every other human being.
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