Human Rights Case Summaries

United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130 (30 April 2012)

This decision of the Court of Appeal of Alberta considered the scope of the right to freedom of expression in the Canadian Charter of Rights and Freedoms. This was considered in the context of whether a union had the right to collect and distribute images of people crossing a picket line.

This appeal was brought by the Attorney General of Alberta who argued that the union's collection and use of the images constituted a breach of privacy.

Axel Springer AG v Germany [2012] ECHR 227 (7 February 2012)

The European Court of Human Rights has allowed an appeal by a newspaper publisher against an injunction preventing it from reporting details of criminal proceedings brought against a television actor. The Grand Chamber of the Court found that the injunction constituted an unjustifiable interference with the right to freedom of expression under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Von Hannover v Germany (No. 2) [2012] ECHR 228 (7 February 2012) 

This case is an application to the European Court of Human Rights by Princess Caroline of Monaco and her husband, Prince Ernst August von Hannover, following the refusal by German courts to prohibit further publication of photos taken of them while on holiday. The Court’s task was to determine whether the manner in which the relevant domestic laws were applied to the applicants infringed their right to respect for their private and family life (guaranteed under article 8 of the Convention). This required an examination of the balance struck between the right to privacy and the right to freedom of expression (guaranteed under article 10).

CTB v News Group Newspapers Limited [2011] EWHC 1232 (QB) (16 May 2011)

In this case, Eady J of the England and Wales High Court granted an injunction restraining disclosure of the identity of a footballer who had had an extramarital affair. In doing so, the judge first had to consider two competing rights in the European Convention of Human Rights: the right to respect for private and family life (art 8) and the right to freedom of expression (art 10). The judge undertook a balancing exercise to determine the relative importance of the two rights in the circumstances. Given the very personal nature of the information and the lack of any real public interest in disclosure, Eady J held that the right to privacy prevailed.

Mosley v the United Kingdom (48009/08) (10 May 2011)

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 the World published an article and photographs alleging he had participated in sexual activities with five prostitutes in a London flat.

Hogan v Hinch [2011] HCA 4 (10 March 2011)

The High Court of Australia has rejected a constitutional challenge to the validity of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (repealed). That provision allowed a court to prohibit the publication of information that might enable the identification of persons convicted of sex offences and who were subject to post-custodial supervision orders. The High Court found that contravention of a suppression order under the Act required knowledge that the contravention order existed. This was found to be consistent with the obligation in s 15(3) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), requiring that restrictions on the right to freedom of expression be 'reasonably necessary' to respect the rights and reputation of other persons.

Canadian Broadcasting Corp v Canada, 2011 SCC 3 (28 January 2011)

The Supreme Court of Canada (the Court) held that the broadcasting of a video recording of a pre-trial statement tendered in evidence at trial may be protected by the right to freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter), but the protection does not apply in every circumstance. The use of an exhibit tendered in evidence at trial is, subject to any applicable statutory provision, to be determined by the trial judge in accordance with an analysis of the competing factors at stake, including trial fairness and the administration of justice.

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 their sources.

Article 10(2) of the European Convention of Human Rights requires that any interference with the right to freedom of expression (art 10(1)) must be ‘prescribed by law’.  The European Court of Human Rights held that this requires not only that intrusions on the right to free expression be explicitly authorized by law, but that procedural safeguards – including an assessment by an impartial and independent body – also must exist.  Furthermore, this assessment must take place prior to the exploitation of the material by the authorities.  The Court held that the quality of the Netherlands law was deficient as no statutory provision existed for judicial review before the police or the prosecution were allowed to seize journalistic materials.  The Court unanimously held that this deficiency amounted to a breach of the right to freedom of expression.

Ontario (Public Safety and Security) v Criminal Lawyers' Association, 2010 SCC 23 (17 June 2010)

The Supreme Court of Canada held that the right to freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms does not guarantee access to all documents held in government hands.  Access to documents is a derivative right of the freedom, where the denial of that access would preclude meaningful public discussion on matters of public interest.  Access may validly be denied on the basis of countervailing considerations.  In this case, those considerations were client-solicitor and law enforcement privilege.

R v National Post, 2010 SCC 16 (7 May 2010)

In this case, the Canadian Supreme Court found that the guarantee of freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms (Canadian Charter) does not create a constitutionally entrenched immunity to protect journalists against the compelled disclosure of secret sources.  The Court examined if there was nevertheless a common law privilege ‘to be applied in light of the important public interest in freedom of expression’ and found that this must be assessed on a case-by-case basis.  In this case, the Court considered that the public interest in protection of the secret source did not outweigh the public interest in the production of physical evidence of the alleged crimes.

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 that would breach their right to respect for private and family life.

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 a balancing exercise and found that the public interest in the case favoured the right to freedom of expression.

McInnes v Vicroads (General) [2009] VCAT 2342 (4 November 2009)

McInnes made an application under the Freedom of Information Act 1982 (Vic) (‘FOI Act’) to VicRoads for a copy of an anonymous letter that VicRoads had received warning that his health might impact on his driving.  VicRoads asked McInnes to provide them with a medical report, upon the presentation of which his licence was confirmed by VicRoads.  However, the process caused McInnes to feel stressed and victimised.  McInnes believed that a neighbour in his hostel had sent the letter.

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 the right to freedom of expression, it was a reasonable intrusion on the right to privacy to publish the name of a defendant acquitted of rape.

Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009)

The England and Wales Court of Appeal has held that the police taking photographs of an individual in a public space (and retaining those photographs) breached that individual's right to privacy under art 8(1) of the European Convention on Human Rights, which states that every person has the right to respect for their private and family life, their home and his correspondence.

Erdoğan v Turkey [2009] ECHR 39656/03 (13 January 2009)

The European Court of Human Rights recently found that the Government of Turkey, having ordered lawyer Ayhan Erdoğan to pay compensation for remarks that he made against a public figure during court proceedings, had breached Mr Erdoğan's right to freedom of speech in violation of art 10 of the European Convention on Human Rights.

Article 10 of the Convention guarantees the right to freedom of expression, including the freedom to 'impart information and ideas without interference by public authority and regardless of frontiers' (art 10(1)), subject to such restrictions and penalties as are 'prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others' (art 10(2)).

Brooker v The Police [2007] NZSC 30 (4 May 2007)

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).