Human Rights and the Privacy law - Essay Example

 Human Rights Act Law analysis Introduction Human rights are known to be the moral principles that set out standards of human behavior and are regularly protected as legal rights in either the national or international law. Guaranteed rights are the constitutional abstract idea of that which is due to a person or governmental body by law, tradition, or nature that are made certain, in the future or assume responsibility. The human Rights Act was passed to law in 1998. The act meant that one can defend his right in the UK courts and it was the obligation of the public organizations to treat everyone equally, with respect, dignity, and fairness. The right protects all the residents rich or poor, young or old. Organizations and companies in forming liberty can use the rights. However, the Act has been frequently misunderstood and misrepresented. [Sha34] The rights contained within the law are based on European Convention on Human Rights articles. It also gives further effects to freedom and rights that are guaranteed under the European Convention. This means that judges must study and give effect to the legislation in a way that is compatible with the convention rights. It also implicates unlawfulness for a public authority to act in an incompatible way with the conventional right. The Human Rights Act protects; the right of life, the prohibition of torture and inhumane treatment, protection against forced labor and slavery, the right for freedom and liberty, the right for fair trial and no punishment without law and freedom of thought belief and religion. The act also gives respect privacy and family life providing the right to marry. It also provides the freedom of speech and peaceful demonstration with no discrimination of any kind. It also protects property and the right of education Privacy and freedom of speech are important human rights that have not been strongly protected in English law. The freedom of speech has been a residual liberty traditionally because it existed only when the statute did not restrict its exercise. Liberty law on the other hand, is largely governed by the common law and is concerned with the protection of individual rights to reputation. This is vital for freedom of press and speech. However, there has been no explicit right of privacy. Even though the European Convention guarantees both rights, the English courts must take account of decisions of the European Court of Human Rights in order to interpret and apply Convention rights under HRA (Human Rights Act 1998). This is vital because the leading decisions are based on European Court in Von Hannover V Germany. The influence of the ECHR and the decisions of the Strasbourg Court that had the last word on implementing the Convention brought changes in English law. There are a number of reasons that for the absence of privacy law. The privacy concept is notoriously difficult. The difficulties are due to the wide range of ways in which personal; privacy may be infringed. The infringement may be understood in four senses, for instance; the intrusion of personal space, the disclosure or wrong use of personal information either by the commercial organizations or the media. It may also be understood as decisional privacy in the understanding reference of USA, which gives the right to have an abortion or engage in some sex intimate relationships. It may also be termed as attention privacy, which emphasizes on rights to have spams and other unsolicited messages clog up your message box. Privacy is difficult to distinguish from general liberty rights. The English law does not recognize the explicit tort of privacy either generally or in the context of wrongful disclosure of personal information by the media. The position was re-affirmed by the House of Lords in the case of Wainwright V Home office (2004) 2 AC 406. This was a case involving forcible strip search. This case was under the intrusion of personal space and the decision by the House of Lords, through Lord Hoffmann, felt it was inappropriate for the courts to formulate general privacy right. They indicated that privacy is only a value and not a principle of law in itself. The parliament has the mandate to put things right when there is clear evidence that law should provide remedy as it has done in regulating telephone tapping and bugging through Interception of Communication Act 1985 and later legislations. In the media context, the courts have also declined to recognize an explicit tort of invasion of privacy and have only been able to protect it by manipulating and developing other torts or causes of action. In the case of Kaye v Robertson (1991) FSR 62, journalist from Sunday sport took photos of the actor when he was in hospital recovering from very serious head injuries incurred in a car accident that he was involved in. Kaye had attempted to stop publication of the photographs an interview that was made up. The absence of any privacy was regretted by The Court of Appeal right in English law, comparing the law unfavorably with that in France, USA, and Germany. However, it was only able to grant a limited injunction to stop the publication of the story in the paper alleging that Kaye had consented to an interview. It was unable to provide the remedy to stop that story under the tort of malicious falsehood. English law does protect privacy by adapting the jurisdiction to restrain or secure compensation for breach of confidence. However, there is unwillingness by the court to formulate explicit privacy right and parliament has been unwilling to introduce a privacy law.[Ail09] The Campbell decision in the European Court of Human Rights decided Von Hannover v Germany (2005) 40 EHRR 1. Princess Caroline of Monaco had brought action in German courts. This was in respect of the publication by German tabloid magazines of photographs of her engaged in what she considered private activities. For instance, she was out with her children, shopping, skiing, horse riding, in restaurant and in one case slipping as she went on to the beach at Monte Carlo. German Court did not grant her full remedy, so she went to the court at Strasbourg. The European Court of Human Rights resolved that her right to respect for her private life had not been respected by the decision made by German courts. The court gave details on a number of important principles. The principles stated that the States should take positive steps to protect privacy against the media and that the fair balance must be struck between then Convention rights to freedom of expression and the right to privacy. The English law had a number of limitations concerning the rights. It is generally acceptable that only few rights and freedoms are ‘absolute’. The restrictions may be used only to establish the proper limits of the protected rights rather than an excuse for undermining or destroying the right itself. There is the built-in limitation which states that the rights for each person is limited to the rights of others by the security of all and just demand of the general welfare in a democratic society. The rights and freedom on the ECHR are protected in the English law. This is because it is a condition of membership of the EU. Though there are a number of limitations, huge chunk of the laws form the basis of the English law. The 1998 Act brought most of the fundamental rights and freedoms that were contained in the European Convention on Human Rights into the UK law directly. The incorporation of ECHR in democracy and individual rights was instrumental in challenging the sovereignty of the parliament and protects human rights which could not be protected by the legislature alone. The chapter of Human rights was first unveiled by the Labour party National Executive in 1976. It advocated for entrenchment of The Human Rights Act. When the House of lord set up a selection committee to inquire on the introduction of Bill of rights, the committee unanimously agreed that the bill should be based on the European Convention. It was viewed as armoury of weapon against elective dictatorship for the UK. Body Legal rights are rights that are bestowed onto a person through a given legal system. There is a difference between rights and freedom. Rights are known as liberty and it is a social condition. Freedom is a state of natural existence without any restrictions. Rights are a condition of being that we get when we reserve natural freedoms while rights imply that there is a relationship between the citizens and the state where one party make restrictions. Rights are the privileges that are afforded to people through the law. Laws are the fruitful principles that guides towards agreement and results and form a touchstone for spreading the culture of human rights. The rule of law is directly integral to the implementation of rights. Human rights are center of universality to the principle of laws globally. They form part of the legislation that gives legal rights. Some legal rights may be confined to a specific county depending on the acceptable practices in the country but Human rights cuts across the entire globe. In the early times, whenever human rights violations were openly condemned by third state, it was encountered by the authorities concerned with references to sovereignty. Some of the rights that were imposed by the human right treaty included the civil, economic, social, political and cultural basic rights. The correlative obligations were to avoid depriving, to aid the deprived and protect from deprivation. Rights are normal or legal entitlements to obtain something or act in an honorable way. Those that are familiar with the working of the British legal system will be familiar with the doctrine of the binding precedent, which is, that a decision by a superior court will be binding on inferior courts. This is a familiar fundamental doctrine of common law jurisdictions. Steeped in the legal tradition, it is easy to understand why there is a mistaken belief that the judgments of the ECHR in the Strasbourg judgment was binding on British courts. However, this belief is a mistaken one, not least because it does not fit with the legal traditions of European neighbors whose civil law system does not usually follow the doctrine of binding precedent. However, the Human Rights acts make it clear that the Strasbourg judgments are not binding on British courts. UK felt the need of incorporating the ECHR some 50 years after its ratification on the basis of bringing the human rights contained in the ECHR under the jurisdiction of UK courts. This would make it possible for people to claim the rights within UK complaints and legal system. It was also to bring new culture of respect to human rights in the UK. This is not just about the law and cases taken to court but the decisions people make and the situations they experience on a daily life. The act was to place human rights at the heart of public service delivery. The Human Rights Act 1998 works in four main ways. All the public authorities in the UK must not act in a way that is incompatible with the rights that are contained in the ECHR. Anyone who believes that their rights are infringed by pubic authority claim against the authority in any range of procedures and the act is not limited ti UK citizens. For all new acts of the parliament, the responsible minister must make a statement confirming that the bill is compatible to the HRA. Existing laws have to be interpreted and applied to fit the rights in the HRA where possible. In case of impossibilities, the court issues ‘declaration of incompatibility’. Before the HRA 1998 coming into force, the cases had to pass through all UK courts before considerations to the ECHR in Strasbourg. This process could take 7 years therefore; the incorporation of the ECHR into the UK law has made it convenient for justice. The HRA does not incorporate article 1 and 13 because the HRA meant that the conventional rights are secured through domestic courts available which provide effective remedy. The HRA law guarantees parliamentary sovereignty over the EU laws by enacting and prioritizing the ECHR as the fundamental focus on applying all the laws in UK. It becomes very hard to balance conflicting rights. In the case of Christian and gay rights, Christians and other faith groups have the right to manifest their religious beliefs but it must be balanced against the rights of others. In a detailed ruling by ECHR in a claim that was brought against the British government though four Christians was not a surprise. The ruling revealed complexity and difficulty of seven judges in concluding the case. This brings a point where the rights of to people collide and how the law deals with it. In the conflicting cases, there is no predisposition to discriminate against other individual or group. If two rights conflict, then it could mean that one of them is not a right. This is according to Geoff Webb who states “a right by definition is absolute, that’s what distinguishes a right from an inspiration or a moral claim.”[Rey13] The declaration of incompatibility is a declaration issued by judges in the UK in consideration of the term of a statute that is incompatible with the UK’s obligations under the HRA which incorporates the ECHR into the domestic laws. The decisions of the UK courts under the HRA have no significant impact on criminal laws or on the ability of the government to fight crime. The HRA had no impact upon the government’s counter-terrorism legislation which has difficult areas arising from decisions of the ECHR. In other areas, the impact of HRA on UK laws has been beneficial and has led to positive dialogue between the judges and those at ECHR. The HRA has not significantly altered the constitutional balance between Executive, the Judiciary and Parliament. Conclusion The Human Rights Act is composed of sections that have the effect of codifying the European Convention on Human Rights protections into UK law. All public bodies that include the local governments, publicly funded schools, hospitals, courts, police and others that carry out public functions must comply with the Convention Rights. The ECHR rights are guaranteed because they form the basis and reflection of all rights in UK. The rights has articles that deals with; respecting rights, life, torture, servitude, liberty and security, fair trial, retroactivity, privacy, conscience and religion, expression, association, marriage, effective remedy, discrimination, derogations, aliens, abuse of rights, and permitted restrictions. The RHA protocol contains three different rights which signatories could not agree to be placed in the Convention. These are articles on property, education and election in protocol 1. Protocol 4 deals with civil imprisonment, expulsion and free movement rights. Protocol 6 provides restriction on death penalty and protocol 7 contains criminal and family rights among other protocols. The convention for the protection of Human Rights and the fundamental freedom have some conflicting issues that were linked to the parliament which in turn proposed a list of rights to be protected and procedure on the best way to handle the conflicts based on the ECHR laws. U.K upholds the ECHR laws as fundamental to the HRA. Bibliography Sha34: , (Chakrabarti, 1934), Ail09: , (Kavanagh, 2009), Rey13: , (Reykjavik, 2013), Read More