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” for interfering with an individual’s right with an appropriate aim, this condition is not enough. The interference needs to be вЂ?necessary in a democratic society’. What constitutes a democratic society is presented in the case Dudgeon v. UK. Tolerance and broad-minded interpretation are its main aspects. вЂ?Necessary’ does not mean indispensable, but neither does it mean вЂ?reasonable’ or вЂ?desirable’2. The definition of what is necessary can also be found in the leading case Handyside. It reads as follow “it is not synonymous with indispensable”. Necessity implies that there is a pressing social need and that it is proportionate to the legitimate aim pursued. If there is another alternative, less intrusive way of protecting the public interest, then it is will not be qualified as necessary. The вЂ?good faith’ of a Court is not sufficient in itself. The burden lays on the Government to prove the pressing social need. The stronger the right is (if, for instance it is at the chore of private life), the more demanding the burden will be. As a result, this criterion seems to aim at preserving the superiority of the protected right.

Deciding on this matter is where the margin of appreciation is most important.

Margin of Appreciation :

In the search for balance, the margin