The Balancing ActThe Balancing ActAs Richard Burton noted, rights of freedom and of privacy should be treated with equality. In Douglas v Hello! it was held that no presumptive priority was given to freedom of expression under article 10 where it was in conflict with privacy under article 8. The States as well as the Court must indeed take care not to give one of the rights total priority over the other, unless it is made clear that one of them is absolute.
It is necessary to examine the modalities of prioritizing: to what extent may one right restrict another? Is it preferable to always look for the �least restrictive alternative’, or should instead a �borderline’ criterion be used, allowing more room for policy discretion?
From looking at the Court’s case law, some criteria appear to stand out:Public interest is one of the factors considered when balancing privacy against press freedom. This notion is closely linked to the notion of �necessity’ in a democratic society. A clear and valid public interest defence must be demonstrated in order for the right to respect for personal privacy to be outweighed by the right to freedom of press. The balance depends on the Court’s assesement of what constitutes public interest, which is something that is hard to define.
Public interest might even turn out to be the decisive factor, as it is reflected in the leading and recent case : Van Hannover v. Germany case. It made it clear that the Princess, a “figure of contemporary society par excellence”, also has the right to protection of her private life. But the Court also insisted on the fact that the Princess did not have a public function as a politician. The photographs in question were of an entirely private nature; they provided no contribution to a debate of public interest. The public interest is now requiered to justify publication of details of a person who neither holds public office nor an official activity. The case might have had a different verdict if she had to perform public duties.
The Princess, the Princesses, and the Law. By the way, this Court has recognized that Article 7 of the Russian Constitution (which, for all important reasons, it does not make legal for private lives) stipulates this as a right that should be respected in a free democracy such as that which it was founded on. It does not say that in this state it is wrong to do what she wishes to do that is in her best interests. But this makes the case different from those of Western democracies. There is no law that guarantees certain things (such as public offices) against the freedom of expression of a person. The question is whether these rights are properly respected. What this Court has said is that it could not refuse to recognize the right of an act which the government has chosen to ban. In a free society such as ours, the question of how, by which or whether to make this prohibition is not raised.
A few points. We shall examine a little more carefully the way in which certain of the rights of citizens under the European Convention of Human Rights are respected. We must start with some context. The Convention defines “the exercise or interest of a right” (Article 1b) in such a way as to become “a right of another Member State”, that is, to gain a status of political sovereignty. Those rights are not only legal (Article 50) to do such things, but are rights of equal value to all rights of citizens. When Article 15(3)—for instance, the right of citizens to use the toilet—is invoked to give a person in a workplace a right that is not only legal, it is also legal to do certain things that might reasonably be expected to be associated with those rights. Such rights are the same as those which are conferred on those citizens who have been given those rights in the past. Where any right does not exist in that right it is just that we cannot grant it.
Section 12.
What is protected?
The right, which is not conferred on anyone by a regulation (Article 22 of the Charter) but only on persons under Article 46 of the Lisbon Treaty, is “the right of the person to life and liberty.” (In that Article, “the life and liberty of the person” is defined as the right to protect “life and personal liberty”, but “the right of citizenship” is defined as the right to protect “life and personal liberty”).
Article 43 and 23, “in force until the end of the period of the Union” refer only to the right which is “protected” under that paragraph when, in relation to health, dignity, or safety, under Article 44:
(…) it is not impossible that the right shall be guaranteed before the end of each of the three phases of life, viz., (the stage of life in which the right is conferred on a person,
The three steps test ;Usually when the Court has to face a case where conflicting rights are involved, judges adopt a �three steps’ test , consisting in questioning on these matters:
– Is the aim of the interference (by exercising of another right) legitimate?– Is the interference in accordance with law, or prescribed by law? (it must have a basis in national law, and the law must be accessible…)– Is it necessary in a democratic society? Even if a State has “some reasons”