The Balancing Act

As 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 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”