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14. Privacy
Warrantless search of home by police justified exclusion of evidence from criminal proceedings R v Larson, 2011 BCCA 454 (10 November 2011) Summary In this case, the Court of Appeal for British Columbia overturned Mr Larson’s conviction for unlawful production of cannabis under s 7(1) of the Controlled Drugs and Substances Act, SC 1996, c [...]
Indefinite detention of non-convicted persons’ DNA violates right to privacy GC v The Commissioner of the Police of the Metropolis [2011] UKSC 21 (18 May 2011) Summary On 18 May 2011 the Supreme Court of the United Kingdom handed down a judgment which considered whether a provision in the Police and Criminal Evidence Act 1984 (PACE) [...]
Balancing the right to privacy and freedom of expression: What is the public interest in private affairs? CTB v News Group Newspapers Limited [2011] EWHC 1232 (QB) (16 May 2011) Summary In this case, Eady J of the England and Wales High Court granted an injunction restraining disclosure of the identity of a footballer who [...]
Formula One boss’s privacy breached, but limited rights to seek an injunction Mosley v the United Kingdom (48009/08) (10 May 2011) Summary The European Court of Human Rights has ruled against former Formula One boss Max Mosley in the latest round of the well-publicised litigation he initiated in 2008 after the UK newspaper News of [...]
Right to Privacy Considered in Relation to Summons to Produce Documents De Simone v Bevnol Constructions & Developments Pty Ltd & Ors [2011] VSCA 54 (3 March 2011) Summary A recent decision of the Court of Appeal has held that it is highly unlikely that the production of documents pursuant to a summons would ordinarily [...]
Protection of Journalistic Sources: Compulsion to Disclose Information without Review by Independent Body a Breach of Right to Freedom of Expression Sanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (14 September 2010) Journalistic material was seized by public authorities in the course of a criminal investigation despite a confidentiality agreement between the journalists and [...]
Prisoners’ Right to Privacy: Claim for Access to Family Photographs Rejected Broom v Secretary of State for Justice [2010] EWHC 2695 (Admin) (03 September 2010) The England and Wales High Court has held that the decision of a prison authority to deny a prisoner access to photographs of his children did not engage that prisoner’s [...]
What Level of Inquiry and Analysis is Required to Determine the Reasonableness of a Police Search? R v Cornell, 2010 SCC 31 (30 July 2010) The Supreme Court of Canada has considered the level of inquiry and analysis required to be conducted by police when determining whether a forced entry into a premise is reasonable, [...]
Right to Humane Treatment in Detention and Prisoner Access to Health Care Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010) On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. [...]
Do the Rights to Marriage and Equality Require States to Recognise Same-Sex Marriage? Schalk and Kopf v Austria [2010] 30141/04 (24 June 2010) Does the right to marry, and the ‘family unit’, extend to same-sex couples? The European Court of Human Rights recent decision in Schalk and Kopf v Austria considers these issues. Facts Under [...]
Victorian Supreme Court Adopts Narrow View of Right to Privacy and Eschews International Jurisprudence WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010) This case raises the rights to privacy (s 13) and freedom from retrospective punishment (s 27), interpretation of legislation (s 32) and declarations of inconsistency (s 36) under the [...]
Right to Privacy and the Interception and Surveillance of Communications Kennedy v United Kingdom [2010] ECHR 682 (18 May 2010) Whilst specific breaches of the European Convention of Human Rights were not ultimately upheld, this case provides insight into the application and scope of the right to privacy enshrined in art 8 of the Convention. [...]
Refusal to Recognise Change of Ethnic Identity is Discriminatory and Breaches Right to Respect for Private Life Ciubotaru v Moldova [2010] ECHR 638 (27 April 2010) In Ciubotaru v Moldova, the European Court of Human Rights held that, along with such aspects as name, gender, religion and sexual orientation, an individual’s ethnic identity constitutes an [...]
Imposition of Unreviewable Lifetime Reporting Requirements on Sexual Offenders a Disproportionate Intrusion on Private Life F & Anor, R (on the application of) v Secretary of State for the Home Department [2010] UKSC 17 (21 April 2010) This case concerned lifetime reporting requirements for sex offenders. The Supreme Court of the United Kingdom decided that [...]
Possession Orders and the Right to Privacy and the Home Salford City Council v Mullen [2010] EWCA Civ 336 (30 March 2010) In this case, the England and Wales Court of Appeal considered the impact of House of Lords decisions on the rights of tenants occupying premises under ‘introductory’ or ‘homeless’ accommodation legislation. In considering [...]
Right to Privacy and Protection of Children and Families MAK and RK v United Kingdom [2010] ECHR 363 (23 March 2010) The European Court of Human Rights has held that restrictive hospital visiting conditions imposed on a father, the first applicant, suspected of abusing his daughter, the second applicant, breached the right to private and [...]
Right to Private Life and Protection of Children AD and OD v United Kingdom [2010] ECHR 340 (16 March 2010) The European Court of Human Rights has held that the United Kingdom breached its obligation to respect private and family life under art 8 of the European Convention on Human Rights because of errors made [...]
Resisting Extradition Based on the Right to Private and Family Life Norris v Government of United States of America [2010] UKSC 9 (24 February 2010) The UK Supreme Court has held that the extradition of a mentally and physically fragile 66-year-old did not contravene the right to respect for private and family life under art [...]
Anonymity in Court Proceedings: Balancing the Right to Privacy and Journalistic Freedom Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1 (27 January 2010) The press challenged orders protecting the identity of the appellants from publication based on the right to freedom of expression. The appellants claimed [...]
Freedom of Expression and Protection from Defamation: Striking the Right Balance Grant v Torstar Corp, 2009 SCC 61 (22 December 2009) This Canadian Supreme Court decision draws on the freedom of expression guarantee in the Canadian Charter to establish a new common law defence of ‘responsible public interest journalism’ to an action for defamation. The [...]
Balancing Freedom of Expression and the Right to Privacy BKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) (02 December 2009) In a case concerning the relationship between the right to freedom of expression of media agencies and the right to privacy of nursing home residents, the England and Wales High Court has conducted [...]
Criminal Records and the Right to Privacy R (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3 (29 October 2009) The United Kingdom Supreme Court has held that decisions to release information stored in public records about an individual’s criminal convictions, including non-conviction information, will always engage art 8 [...]
Right to Respect for Private Life and Equality in Prison AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (4 September 2009) In this case, the Administrative Court of the High Court of Justice held that the continued detention of a pre-operative transgender woman in a male [...]
Assisted Suicide and Human Rights: DPP Should Issue Guidelines on Exercise of Prosecutorial Discretion Purdy, R (on the application of) v Director of Public Prosecutions [2009] UKHL 45 (30 July 2009) In this case, the House of Lords found that art 8 of the European Convention of Human Rights compelled the DPP to issue specific [...]
Smoking Ban in High-Security Psychiatric Hospitals does not Contravene Right to Privacy N, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009) The House of Lords held that a policy of banning smoking at a psychiatric hospital did not contravene the patients’ human rights and was [...]
Proportionality and Limitations on Human Rights: Indefinite and Unreviewable Reporting Obligations Breach the Right to Privacy JF & Anor, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 792 (23 July 2009) The UK Court of Appeal has found that a regime providing for automatic and indefinite reporting [...]
Freedom of Expression and the Right to Privacy: Reporting the Name of a Person Acquitted of Rape Attorney-General’s Reference No 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order [2009] UKHL 34 (17 June 2009) The House of Lords has held that, in the interests of [...]
Monitoring and Confidentiality of Prisoner Correspondence Szuluk v United Kingdom [2009] ECHR 36936/05 (2 June 2009) The European Court of Human Rights has held that it is a disproportionate interference with an individual’s right to privacy to monitor their confidential medical correspondence with their specialist. The prison governor had directed that the applicant’s correspondence with [...]
Canadian Supreme Court Considers Right to Privacy R v Patrick, 2009 SCC 17 (CanLII) (9 April 2009) The Supreme Court of Canada has held that no privacy interest exists in the contents of garbage bags placed out for collection. Police had seized garbage bags from an individual’s property, and used their contents to justify obtaining [...]
Balancing Open Justice, the Right to Privacy and Freedom of Expression XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009) The Victorian Civil and Administrative Tribunal has confirmed that society’s interests in an individual’s rehabilitation can override the principle of ‘Open Justice’ and the right to freedom of [...]
The European Court of Human Rights recently found that the Government of Turkey, having ordered lawyer Ayhan Erdoðan to pay compensation for remarks that he made against a public figure during court proceedings, had breached Mr Erdoðan’s right to freedom of speech in violation of art 10 of the European Convention on Human Rights. Article [...]
The case of S and Marper v United Kingdom considered whether the retention of DNA and fingerprints from innocent people is consistent with human rights law. This case will be particularly informative for the interpretation and application of s 13 (privacy) and s 7 (limitations) of the Victorian Charter. Detailed case note.
The European Court of Human Rights has held that the measures taken by a Finnish hospital to safeguard the right to respect for private life of an HIV-positive patient of the hospital, who was also employed by the hospital from time to time as a nurse, were inadequate and in violation of art 8 (the [...]
A decision of the ACT Supreme Court has considered the scope of the right to family life and protection in the context of adoption proceedings. Detailed case note.
This decision of the England and Wales High Court concerned an application for judicial review – on the basis of interference with the right to private and family life - of a compulsory acquisition order made by the London Development Authority, and confirmed by the Secretary of State for Trade and Industry, for the purpose of [...]
The Supreme Court of New Zealand has recently considered the extent to which privacy limits freedom of expression in the context of the Bill of Rights Act 1990 (NZ). Detailed case note.
The European Court of Human Rights has held that a public college which monitored an employee’s telephone, email and internet usage without her knowledge engaged in conduct amounting to an interference with her right to respect for private life and correspondence within the meaning of art 8 of the European Convention. Detailed case note.
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