Common law, Privacy, Human Rights Act, English law
Essay de fin d'année au sein d'une université anglaise.
Etudie l'impact de l'entrée en vigueur du Human Rights Act sur la protection de la vie privée en droit anglais.
Rédigé en anglais et sans plan matérialisé. Obtenu la note de 70 %.
[...] Ben Meryem Fatima p0924621x Has the passing of the Human Rights Act forced English Courts confronted the gap in the law protecting privacy? Privacy has always been a tricky topic. The debate about the place of a right to privacy in English law is not new. The United Kingdom, land of freedoms, is also known for being the country where tabloids mix with the political and financial newspapers. This topic is also known for being one point of discord between English and American Common law, where privacy is constitutionally and effectively protected in the latter. [...]
[...] One of the most significant unfairness examples would be the outcome of the Kaye case. In this famous case, whose facts do not need to be repealed, the claimant, which has used all the alternative tools to obtain reparation of his infringement of privacy, which was obvious and overwhelming, did not obtain an adequate remedy. The claimant only obtained the magazine to refute that the interview has been published with his consent, as he brought an action for malicious falsehood among the combination of torts that his council put forward. [...]
[...] There must be some interest of a private nature which the claimant wishes to protect, but usually the answer to the question whether there exists a private interest worthy of protection will be obvious” There is no denying that in the Campbell case, the House of Lords stressed more on the question whether the information disclosed was private rather than confidential. The implement of the Human Rights Act did not prevent the courts from using the beach of confidence to protect privacy from one day to the next. However, the Courts tried their best with the resources they had at hand, namely the doctrine of confidence to more effectively protect privacy. [...]
[...] In the pre Human Rights Act era, claimants have been denied the right to bring an action on behalf of the respect of their privacy. On the contrary, they have been forced to test the boundaries of litigation by bringing action from breach of confidence to the commission of torts such as defamation, malicious falsehood and trespass to the person. In most cases, judges have stressed a lot on doctrine of confidence. However, even though its relevance has repeatedly been put forward by judges, as for convincing themselves, its efficiency is very arguable. [...]
[...] It should be independent, actionable per se. In some countries like Spain, Germany or Israel, privacy is constitutionally protected. Not only, it would involve the passing of bills in conformity with the right to privacy, and hence put an end to the inconsistency and confusion in this area of the law, but it would also fulfill a symbolic and educational value. Fuerhermore, some academics advocate a Bill of Rights as a solution. All these thoughts considered, we could consider that all the reluctance to create an independent tort of privacy, beyond any policy reasons, lies about the topic of the Convention. [...]
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