General Principle:
One may argue that the safeguards provided by Article 8 HRA can only be maintained when the state interferes with them as opposed to a private party.
Name:
Von Hannover v Germany (2005) 40 EHRR 1
Facts:
Notwithstanding this, the Court spent a lot of time talking about how paragraphs 8 and 10 have conflicting interests, namely in relation to the idea of positive duty. The court heard arguments over a number of images that had been taken of Princess Caroline, who is the ruler of Monaco. While some of the pictures were shot of her in a private beach club, the bulk of the photographs were taken in public settings. The German courts had authorised the release of many of the images, but they had forbidden the publication of photographs in which she was seen with her children because they believed that doing so would violate her right to the protection of her family. Princess Caroline brought her case to Strasbourg, where she voiced her dissatisfaction with the insufficient security provided by the state for her private life and her image.
Ratio:
The European Court of Human Rights in Von Hannover v Germany reaffirmed that article 8 protected parts of personal identification, such as a person's name or photograph, and that it may also protect a ‘zone of interaction of a person with others, even in a public context’. The court ruled that there may be positive requirements placed on the state to guarantee effective respect for private or family life. These obligations may include the adoption of measures to ensure respect for private life in the sphere or in the relationships of persons amongst themselves (ie a law of privacy). They recognised that the boundary between the state's positive and negative obligations under the provision did not lend itself to precise definition, but that consideration must be given to the fair balance that needs to be struck between the competing interests of the individual and of the community as a whole; and in both contexts, the state enjoys a certain margin of appreciation'. This was acknowledged despite the fact that the boundary did not lend itself to precise definition. The court came to the conclusion that article 8 was applicable to the situation at hand and also that the state did not provide an acceptable level of protection.
Application:
Yet, the United Kingdom was not involved in this particular instance. The ruling has the effect of imposing a positive responsibility on state governments to make certain that people's article 8 rights are adequately protected within the context of the private sphere of their lives. This has been accomplished in the United Kingdom by "shoehorning" the jurisprudence of articles 8 and 10 into the already existing common law notion of confidence (Douglas v. Hello (no 3) [2006] QB 125). When there is no pre-existing relationship of confidence between the parties, confidence can arise from the defendant acquiring information that he should have known he was not free to use through unlawful or covert means; this was the situation in Douglas v. Hello, and it was also the situation in Campbell v. MGN.
Analysis:
In Von Hannover v Germany (2004) 40 EHRR 1, (2004) 16 BHRC 545, the
European Court of Human Rights (ECtHR) stated that Article 8 extended to
aspects relating to personal identity, such as a person's name or a person's
picture and could cover a ‘zone of interaction of a person with others, even
in a public context’.
Comments