Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 75
The Article 8 right is qualified, not absolute. Often, one of the limits on Article 8 arises out of the
conflicting right to freedom of expression enshrined in Article 10 of the Convention, which is that:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and
regardless of frontiers. This Article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 10 is qualified by reference to the rights of others, and by the need to protect information
received in confidence. Article 8 and Article 10 cross-refer to each other in the way in which each is
qualified. This engenders a tension that will be explored in further detail below. The European Court
of Human Rights (ECtHR), based in Strasbourg, interprets and applies the Convention.
The Human Rights Act 1998
The Human Rights Act 1998 came into force on 2nd October 2000 and incorporates the
Convention into English law. The rights incorporated (some Convention rights are not) include those
enshrined in Articles 8 and 10 and are set out in Schedule I of the HRA. Prior to the implementation
of the HRA, English law recognised no free-standing right of privacy, although on occasions causes
of action such as trespass or breach of confidence were used to protect certain aspects of privacy.
Under section 2 of the HRA, when determining an issue that has arisen in connection with a
Convention right, the English courts are required to take into account any relevant Strasbourg
jurisprudence, including judgments, decisions, declarations or advisory opinions of the ECtHR; but
the HRA does not give direct effect to Convention rights. This has meant that, in order for the right
to privacy to be recognised in disputes between individuals, English courts have had to interpret the
provisions of the HRA in a manner that allows it to be recognised as a right at common law.
The HRA protects individuals against unlawful interference of their Convention rights by the State
and it is, therefore, not possible for a private individual to institute proceedings against another solely
on the basis of breach of a Convention right. An individual must have a legitimate cause of action
under English law. The HRA provides that it is unlawful for a public authority to act incompatibly with
a Convention right. The HRA does not define what a public authority is. However, it does provide
that the English courts are public authorities for its purposes. The HRA further imposes a
requirement on English courts to interpret, as far as is possible, legislation compatibly with
Convention rights. Where primary legislation is deemed incompatible with a Convention right by a
court, that court may make a declaration of incompatibility.
The HRA gives individuals who claim that a public authority has acted incompatibly with a
Convention right the option to bring proceedings under the HRA in the appropriate court or tribunal,
or to rely expressly on the Convention right in question in any legal proceedings. These provisions,
along with related case law, fashion an indirect protection of Convention rights as between