Human Rights and Civil Liberties in the UK - Coursework Example

Human rights and civil liberties in UK Introduction “Civil liberties is another name for the political freedoms that we must have available to us all if it to be true to say of us that we live in a society that adheres to the principle of representative, or democratic, government” (Gearty, 1). Human rights and civil liberties are two closely intertwined terms and refer to the rights or claims that are considered to be basic for the freedom of an individual. These include freedom of speech, freedom of movement, freedom from torture, freedom from forced/bonded labour, right to free and fair trial, along with other the basic human requirements of food, shelter, and clothing. There is a growing debate on the conceptualisation of an individual’s duties towards his state and other human beings; however in the modern context human rights and civil liberties are mostly relevant to the fundamental rights owed by the state towards its own citizens, and towards other states and their citizens. This concept of civil liberties was first formally created in England during the medieval era, in 1215, with the formulation of the English legal charter, known in history as the Magna Carta. This famous Carta was based on a legal document that dated even earlier, and was known as the Charter of Liberties, a proclamation made by Henry I in 1100, and it formed a legal outline that would dictate the king’s behaviour, and be binding on him while dealing with the church and the nobility. A first of its kind in the legal history of England pertaining to civil rights, and a landmark proclamation that later gave birth to the notion of civil liberties in the Continent. In the modern times, most of the states have formulated a Constitution, or enacted the Bill of Rights, and various other similar legal and constitutional enactments that cite and aim to safeguard the basic human rights, while guaranteeing civil liberties to their citizens. Along with this there has also been the creation of the European Convention on Human Rights and the International Covenant on Civil and Political Rights, with the express aim to safeguard the rights and liberties of all human beings at an international level. Most of the states have either formed their own constitutions that protect individual rights, or have enacted laws based on these international Conventions by ratifying these charters, and making them effective in their own countries. It has been observed that in matters relating to striking a balance between protecting private life and the freedom of expression that the court has to rule upon, it has always been emphasised that the requirement that the publication of information, documents or photographs in the press should serve the public interest and make a contribution to the debate of general interest. Whilst the right for the public is to be informed, a fundamental right in a democratic society that under particular circumstances may even relate to aspects of the private life of public persons, particularly where political well known personalities are involved; and when publications, whose sole aim is to satisfy curiosity of a certain public as to the details of the private life of a person, whatever their fame, it should not be regarded as contributing to any debate of general interest to society. In this context of the Right to Privacy, I will examine the various laws that are pertinent to UK and the continent, and the various problems that are continually arising from the violations of the civil liberty that propagates the Right to Privacy. This article will show that it is necessary to draw some lines as regards to publishing information or printing pictures of individuals, however much interest such publications may arouse, keeping in mind that privacy is also one of the basic rights that can be claimed by an individual. Discussion A brief look at the history of the concept of individual rights and the ‘Right of Privacy’ from a pan European context: “The individual’s desire for privacy is never absolute, since participation in society is an equally powerful desire” (Westin, 7). UK’s first bill on civil liberties Magna Carta framed in 1215, though after many amendments by the 19th century acts, still exists in the statute book of England (chapter 9 of the Carta), where it states, “No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed, nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right” (cited in Tugendhat, 1). The law spells out the very basic rights that can be claimed by all individuals against a authoritarian leadership, and as Lord Denning aptly described it, Magna Carta is indeed "the greatest constitutional document of all times - the foundation of the freedom of the individual against the arbitrary authority of the despot"(cited in Danziger & Gillingham, 278). The concept of civil liberties thus stem from the notion that “each state should respect these individual liberties and needs and that its legal and constitutional system should identify and protect these rights” (Nature and enforcement of human rights and civil liberties, 7). Both human rights and civil liberties symbolize the way a state should behave towards its citizens, in regards to giving them their basic rights and claims, and showcasing a sense of value in each individual. UK, till date, has no codified constitution, and is dependent on the various legislations and legal conventions passed from time to time (dating back to pre Magna Carta era) that oversees the civil liberties and human rights within the state. It has however ratified the European Convention, that covers both the civil liberties and human rights arena, and the Human Rights Act of 1988 passed by the British Parliament, under this Convention, is legally binding on UK. Under the UN Human Rights Convention, International Covenant on Civil and Political Rights, European Human Rights Convention, and almost all other international conventions on human rights have recognised ‘privacy’ as one of the basic fundamental rights (though not absolute) to be provided by the states to all its individuals. The right to privacy upholds human dignity and also safeguards many other basic human rights like, freedom of association, freedom of movement, and freedom of speech. Despite granting privacy the status of a fundamental right, we find that there are widespread violations of this basic right, in the name of surveillances and counter terrorism acts by the state. However nothing can beat the invasion of private spaces by the press, and gain access to private information of well known personalities, to obtain publicity and make huge profits by using these famous names. The right to privacy can be traced back to 1361, where we find the legal provisions had been made by the then keepers of justice, under the Peace Act, for the arrest of the ‘peeping toms’ and so called “eavesdroppers” (Michael, 15). Again in 1765, we find another legal case where an appeal to enter a house by force, in order to seize certain documents, was struck down by Lord Camden who commented “It is the publishing of a libel which is the crime, and not the having of it locked up in a private drawer in a man’s study... Has a secretary of state a right to see all a man’s private letters of correspondence, family concerns, trade and business? This would be monstrous indeed! And if it were lawful, no man could endure to live in this country” (Entick v. Carrington, 1765). These were first steps taken, in legal terms, towards framing of regulations pertinent to the protection of privacy in UK. Internationally, under the various Conventions, the right to privacy comes as one of the basic human rights. The Convention for the Protection of Human Rights and Fundamental Freedoms (1950) in its Article 8 states that, “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health of morals, or for the protection of the rights and freedoms of others” (Convention for the Protection of Human Rights and Fundamental Freedoms, 6). This Convention has two arms for overseeing and enforcement, namely, the European Commission of Human Rights and the European Court of Human Rights. These two bodies while keeping a close eye on the effective implementation of civil right by its ratified members, however has not drawn any comprehensive definition of the terminology ‘right to privacy’. In this context we find that the Court states “the court does not consider it possible or necessary to attempt an exhaustive definition of the notion of ‘private life’...respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings” (Niemietz v Germany, 33). Keeping in mind the view that the Convention is a “living instrument’, whose aims and objectives are bound to alter with the changing times (Tyrer v UK, 2), the road has been kept open, to form new laws as per the changing times, and shifting social perspectives on the definition of ‘private life’. In its first ever comprehensive analysis of what can be construed by the word ‘privacy’ the Court commented that “For numerous Anglo-Saxon and French authors, the right to respect "private life" is the right to privacy, the right to live, as far as one wishes, protected from publicity...In the opinion of the Commission, however, the right to respect for private life does not end there. It comprises also, to a certain degree, the right to establish and develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality” (Decision and Reports of the European Commission of human rights, Application no. 6825/ 7486). This was evident in the case of Paton vs. UK in 1980, where there was a complaint lodged by a father (potential) where his wife had opted for an abortion without his consent and permission. Here the Human Rights Commission had agreed that this action had indeed breached the applicant’s right to privacy and family life, however later discovered that such a breach was acceptable (under Article 8 , para. 2) keeping in view the wife’s mental and physical well being (Decision and Reports, Application no. 8416/78, 244). Another relevant case pertaining to the scope and definition of ‘private life’, is the Arrondelle v. UK (1980) were we find the Commission had found her justified in her complaints that the aircraft noise made near her house, was an invasion into her privacy as her limited means did not allow her to change her residence (Decision and Reports, Application no. 7889/77, 186). Similarly in the Airey vs. Ireland case the Court had found the applicant justified in her complaint that the state had not provided her with enough means to get a legal separation from her husband in order to protect her private life (Airey vs. Ireland, 1979). Thus in the cases cited above we find that the scope of privacy can be very broad, and can be interpreted and defined according to the circumstances that arise at that particular moment. In the last two cases we find that the Commission has made it very clear that not only will the state have to abstain from interfering into the lives of its citizens, but it must also proactively take measures to protect the rights of all its individuals. Keeping this scope and definition in mind we will now examine the scenario in UK, in the modern context, in regards to this Right to Privacy and its various associated violations made by the media. The right to privacy in relevance to the modern UK laws: The Human Rights Act passed by the UK parliament on 9th November 1998, and made effective from 2nd October 2000, was brought into force with the chief aim of giving more force to the rights and liberties outlined under the European Convention on Human Rights. Once effective, this act permitted individuals to make appeals directly to the British Court on the basis of rights and claims made in the ECHR. However this act preserves the sovereignty of the parliament, and does not authorise the judiciary system to repeal any of the past or present legislations. The Human Rights Act which pledges to safeguard the rights of an individual, also accords the press with the rights to express itself. This freedom of the press has become a source of perennial headache, in the recent times, and there are speculations as to whether a proposal should be made to regulate the press, so that they cannot cross a certain line to intrude into a person’s privacy. There are indeed proposals for bringing a statutory tort of infringement or invasion of an individual’s privacy, and talks are also on as how to regulate the forcible intrusions being made in order to gain access to personal information to be made public. In fact privacy violations are on the rise, and with it there are growing pressures for bringing in laws to control this rising threat. This threat takes even larger proportions, owing to the globalised nature of the world, and with the converging technologies and multimedia, which promises to wipe out all imminent barriers in the world of information technology and communications, thus making any leaked information, a property of the general public within a matter of just a few minutes. An individual’s privacy can be viewed chiefly from four major contexts. These are: physical privacies that concern safeguarding from physically invasive methods like cavity probes, or drug testing; communication privacies that include safeguarding all modes of communications, like, emails, phone calls, and letters, amidst many more; data privacies that include safeguarding of certain personal information/data like medical records, or information pertaining to financial matters of an individual; and territorial privacies that include safeguarding privacies at one’s own home, office or even public places. As Volio aptly framed it, “in one sense, all human rights are aspects of the right to privacy" (Volio, 184). In UK it has been observed that the lack of a statutory tort for invasion of privacy, has more often than not, in its piecemeal manner of applications, failed to appropriately safeguard the privacy infringements that take place regularly (Seipp, “Justice, Privacy and the Law”). The British courts also for some reason have been reluctant to clarify these piecemeal applications of various legal conventions into one discursive and absolute right (R v Khan (Sultan), 1996). This case was interesting in the sense that the court had looked beyond the clichéd definition of the right to privacy and had given social interest more importance. In this case, an electronic recording device had been implanted to eavesdrop on a conversation between two drug traders. The accused drug dealer had brought in an objection relating it as an infringement of privacy, owing to the use of the hidden electronic device. However the court in this case had overruled the objection and made the evidence gathered admissible, even though the method in which it was obtained was illegal. Thus we find that an invasion of privacy was allowed, in order to protect the general interest of the public. This was an example where breach of privacy was not taken into account, and justifiably so; however there are also innumerable instances where there have been invasions into privacies (of mainly well known personalities), by the press for the sake of mere publicity and cheap gimmicks. This was seen in the Spencer (earl and countess) vs. UK case in 1998, where the Commission dismissed the complaint made by the applicant against the state’s less than adequate measures to protect her privacy (the newspaper people had taken photographs using long length zoom camera in order to obtain photos of the applicant, as she was recovering in a clinic), citing reasons that the complainant had not exhausted the “breach of confidence” against the press. It is indeed very difficult to use the breach of confidence against the press in order to stop the latter from publishing photographs taken through illegal means. This is also evident in the Kaye v Robertson case in 1991, where the actor Gordon Kaye had to seek legal protection to stop the publication of an article and some of his photographs, which were related to his convalescence period, while he was recuperating from a serious accident. In this case the accused had somehow managed to enter the room of Kaye, while he was still in the hospital, with flashlights and cameras, and supposedly interviewed him for a long time, when the latter was not even in a condition to speak. Clearly a serious case of infringement of privacy, however here in this case the Court only recognised the fact the Kaye had indeed the potential right to sell his story to the one who would give him the highest bid amount. It was regarded by the Court that Kaye mainly wanted the injunction in place, not to stop any further attacks on his private space, but to stop the photographer from making profits from an interview, that had allegedly never taken place. Eventually, Kaye was able to establish the fact that indeed the interview was a false propaganda, however the main issue of invasion of privacy did not gain much prominence, instead only economic interests of Kaye were taken into account, and the photographer was simply banned from selling the story and the pictures. This case definitely shows us the necessity of bringing in more comprehensive and clears principles that would define the legal borders pertaining to invasion of privacy. Various other celebrities have suffered similarly, like the recent well highlighted ‘Blood Diamond’ case pertaining to the supermodel Naomi Campbell (where finally the court agreed to disallow the press to be present during the court hearings), or the case of privacy infringement ( Douglas vs. Hello! in 2001) brought in by the well known actors, Michael Douglas and his wife Katherine Zeta Zones, where it was granted that the actors had the ‘Right to Publicity’ where they would be paid a part of the profits, made from selling their photographs or from any commercial benefits made by using their famous names without their prior consent. Another important case pertaining to the invasion of privacy was the Barber vs. Times Inc. (1939) , where photographs of Dorothy Barber eating her meal were taken, and published with the caption “Medicine: Starving Glutton” without her prior consent (Time, Medicine: starving glutton). Ms. Barber filed a suit against the Times group charging ‘invasion of privacy’, for unlawful and forceful entry into her hospital room and taking photographs despite her protests. The court ruled in the favour of Ms. Barber and opined that “In publishing details of private matters, the media may report accurately and yet - at least on some occasions – may be found liable for damages. Lawsuits for defamation will not stand where the media have accurately reported the truth, but the media nevertheless could lose an action for invasion of privacy based on similar facts situations. In such instances the truth sometimes hurts” (cited in Pareek and Majumdar, 416). The harassment of Diana by the press, before her death in 1997 while trying to escape the chasing paparazzi, all are instances of invasions of privacy. Even after her death, that had taken place practically at the hands of the press, her elder son Prince William’s girlfriend Kate Middleton, an average normal young lady, was put under constant media surveillance, which stopped only after she threatened to take legal actions against the press. In 2001, in the case Venables vs. News Group Newspapers, injunctions were placed by the court under guidelines as outlined in the Article 10 of the Human Rights Act of 1988 (Thompson and Venables vs. News Group Newspapers, 2001). Thus, recently we notice more attention is being to the Right to Privacy’, disallowing the press to publish almost anything under the garb of ‘Freedom to express’. Conclusion: The various instances of the cases fought against the invasion of privacy, by the celebrities, shows us that there are indeed laws in place that can be used to deal with the press that crosses its borders, to obtain information for the mere sake of publication and rake profits from these pictures and articles. It is indeed something different to publish article or photos that may of public/social interest, with proper consent; but it is definitely crossing the line when one publishes photos or article without any prior intimidation or permission, to just gain publicity, take revenge, or make financial benefits out of famous names. In UK, Personal information is well protected by the various relevant UK laws, like copyright, laws of confidence, defamation laws and law against spreading of malicious falsehood. Amongst these, the law of defamation is slightly on weak grounds, since defence of justification allows that there would be no effect on the case situation, even if it is revealed that indeed false news had been published by the press reporters, as we have seen in the Kaye vs. Robertson (1990) case, and also previously in the early 1900s in the Corelli vs. Wall (1906), where no restraining order could be obtained against the publishing of postcards in the name of the complainant. The freedom to express does indeed help the press against exposing corruption and other illegal practices, but also sometimes gives them the license to invade into another peoples private sphere. Here the press must exercise self restraint, and comprehend that as there is a right to know for the public, similarly there is also a right to keep personal matters private for an individual (a celebrity or any other well known personality). 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