Introduction

This paper evaluates an assertion that is:

“The law must balance competing rights: to personal privacy on the one hand, and on the other the right of the public to be informed about matters of concern and of the freedom of media to satisfy that concern”.

This assertion is made to evaluate the contradiction among rights that is of right to privacy, right to freedom of speech and the freedom of media. Extensive literature is available both on privacy and on freedom of speech and of the press as distinct constitutive and legal human rights (Kenyon & Richardson 2006). The relationship and contradiction between all rights has been evaluated by number of scholars and researchers, but in present advancement of new electronic communication technologies render a new impulse to the continued discourse (Hamilton & Pors 2003).

The main theme of this assertion is that the privacy rights and interests conflict with the right to freedom of speech or expression. In this concern, the standard statement made is that the right to manage the diffusion of personal information is typically driven by the concern of the general public to have knowledge about facts, private and intimate personal information about politicians, public agents, or famous personalities like, celebrities. It is believed that general public has a right to know the reality about these individuals, who plays a substantial role in society or work as a role model (Kenyon & Richardson 2006).

In contrast to this right, it is said that freedom of speech or expression does not include disclosure of private gossip, as it does not require security under any clause assuring the right to free speech (Stimson 2007). As well, if freedom of speech does include the revelation of individuals’ private or personal information, it does not defend it from legal action in each case (Hamilton & Pors 2003). These two rights or interests need to be balanced in concern to specific facts or laws. There always exist clash among these rights that needs to be resolved with specific approaches (Kenyon & Richardson 2006).

In this paper, conflict between the given rights will be evaluated, so that it can be resolved by suggesting some effective measures and approaches. Evaluations will be done by discussing different rights and conflict among them in different situations or conditions. It will assist in reaching at a comprehensive conclusion about existing conflict and relationships and ways to attain balance.

Freedom of Speech

Freedom of speech is a human right and it is essential to encourage and defend all human rights. Freedom of speech pertains to the freedom to speak freely exclusive of censorship or any limitation (Paul, Miller & Paul 2004). It is also known as freedom of expression that refers to not only freedom of verbal speech, but also any act of searching, obtaining and passing on information or ideas, irrespective of the medium (Kersch 2003). In reality, this right to freedom of speech is not supreme in any country, as it is also subjected to limitations (First Amendment Rights: Freedom to Speak; Freedom Not to Speak 2002).

This right is known as human right under Article 19 of the Universal Declaration of Human Rights. It is also recognized in international human rights law in concern to the International Covenant on Civil and Political Rights (ICCPR). The ICCPR distinguishes the right to freedom of speech, as the right to have notions without obstruction. This right declares that everyone have the right to freedom of expression (Beatson, Cripps, Williams & Cripps 2000). The right to freedom of speech is also documented in Inter-American, European and African regional human rights law (Josselin & Marciano 2002).

This right includes free speech power, the purity of a person’s view, a free press, the dissemination and acknowledgment of thoughts and information, the freedom of expression in art and in other aspects, the competency to receive information and ideas from anywhere and to be silent in some situation (Stimson 2007). The right to freedom of speech is significant for every individual, because of the power and means it provides us to attain different rights (Kenyon & Richardson 2006).

It is one of the mutually supporting rights and is related to other political and civil rights like, right to justice, right to become part of public affairs. The right to freedom of speech also has an effect on individuals’ social and cultural rights like educational right (Beatson, Cripps, Williams & Cripps 2000). As human mind is developing from time to time, the debate related to freedom of speech is also developing continuously (Josselin & Marciano 2002). For improving the right to freedom of expression, generally three coinciding arguments are used (Hamilton & Pors 2003).

These are as follow- 

The search for truth: This argument refers to open discussion along with contending arguments, so that truth can be discovered and this can only be done when all aspects are said and heard freely or without any limitation.

Democratic self-government: This argument related to freedom of expression considers communication as a channel for democratic government (Sopinka 1997).

Autonomy and self-fulfilment: This argument refers that freedom of expression is essential in sustaining the individuals’ self-direction and self-fulfilment in society. Due to this only, fields like art and literature are continuously guarded under the right to freedom of expression (Kathleen 2010).The right to freedom of expression always has a part of several limitations and all arguments given above in regard to freedom of expression are having some limitations due to which conflict occurs in concern to other rights (Golash 2010).

Privacy

Privacy is an indefinable concept. Number of Australian and English lawyers has tried to describe it and tried to identify its roots in the Common law, but they were not able to do this (Colvin 2002). In October 2000, the Human Rights Act 1998 came into force in the United Kingdom. It includes the right to respect for private life ensured by Article 8 of the European Convention on Human Rights (ECHR). As well, it also includes right to freedom of expression ensured by Article 10 (Kenyon & Richardson 2006).

With extensive efforts, English law at last recognized the right to privacy and overpowering the indisposition of the common law. In this concern, the Court of Appeal denied to take this step and announced privacy as a right, but a case of Premier League footballer assisted in it. The footballer ineffectively tried to impede a newspaper that was about to expose details of his private life extra marital affairs (Kenyon & Richardson 2006). This case was tried to be resolved on well-developed principles of offend of confidence, and confined that public had an extensive interest in knowing about the private life of celebrities, who are a role model of many readers (Sopinka 1997).

Afterwards, a number of cases emerged in which the privacy right of individuals like, role models and celebrities were questioned, but it was supported with the breach of confidence and public private interests (Kenyon & Richardson 2006). The courts of Australia and England were having hesitation due to the traditional laws that were made to protect privacy. The right has attained formal position in majority of states, but still it is always in conflict with the right to freedom of speech and of the press. Formal announcement of privacy legislation was still lacking in several countries and this was the major reason of conflict between different rights.

Conflict between Competing Rights

With the discussion of privacy and to freedom of expression, it becomes evident that the scope of both the rights is quite wide and it is possible to contradict at several places, as both are interrelated in some or other way (Stimson 2007). At some points of these rights, there are chances of conflict and at some points, it goes together.

Privacy of an individual may be contravened in several ways. The most substantial considerations in which an individual’s privacy can be conflicted are as follow:

• Invasion of the individual’s privacy

• The public revelation of truth

• Disclosing embarrassing truths about individuals’

• Presenting someone in a counterfeit with publicity (Kenyon & Richardson 2006).

All these aspects are example of conflict between privacy and to freedom of expression. Presenting someone in a counterfeit with publicity is an example of conflict between individuals’ right to privacy and the interest of media in regard to their right to freedom of press (Sopinka 1997). Another conflicting situation in concern to the discussed rights is when media invade a celebrity’s personal life (Kenyon & Richardson 2006). It can be done by taking their photographs with their loved ones or friends with an aim of publication. This practice in reality is known as door stepping, which is wrong and is always in conflict with public interest and right to freedom of press (Alexander 2005).

The invasion or misconduct can also be done by country’s police, private detective agencies or intelligence services, but in these cases there is no conflict between freedom of speech and privacy. All these aspects and several other aspects have emerged throughout the history that in turn have given rise to conflict between these two rights. If an individual wants to protect his or her privacy either the right to privacy or public right to have information and freedom of press need to be compromise (Colvin 2002). Until or unless a balance is not attained, the problem will arise again and again and this situation will become more severe.

Attaining Balance between Competing Rights

Balance between these competing rights is essential that can be done effectively by establishing clear principles or laws in regard to privacy and freedom of expression. In these kinds of situations, the law must try to avoid a conflict between privacy and right to freedom of speech (Paul, Miller & Paul 2004). For example, the courts and authorities can deny that freedom of speech includes the revelation of insightful or personal information, because it only defends severe political conversations (Beatson, Cripps, Williams & Cripps 2000). This must be related to the consideration of political candidates or to identify their appropriateness for high judicial place of work. Although, this statement is difficult to be sustained as a standard, but something should be done for attaining balance. The right to freedom of speech is appreciated, as it appropriates all individuals to take part in unrestrained public discussions, but still there is a precondition that individuals are not having any limitations to discuss any aspects of a human being that they feel relevant to their position or job (Josselin & Marciano 2002). Most of the people have an opinion that a person’s sexual orientation or personal affairs are not related to his/her ability to manage a public position. They feel that it does not pertain to freedom of speech (Kenyon & Richardson 2006).

But everyone does not have the same opinion, as some of them feel it relevant to have all personal information about an individual, who is their role model or some high official or politician of a nation (Stimson 2007). The differences in individuals’ opinions do not provide any effective free expression argument on the basis of which, it can be denied that the press and other media have an authority to give personal information to common people (Kenyon & Richardson 2006). As well, there is also not any distinction between important and valueless thoughts at the time of making decisions about communications entitled for free speech safeguard.

In contrast to the problems related to freedom of speech, the right to privacy is also not taken acutely. For resolving this conflict between competing rights, privacy can also be taken seriously (Dunn n.d.). For taking this right seriously, some norms and standards should be made that include a political candidate’s or role models right to keep away some information of their personal life from public disclosure and accompanying discourse. Or else their right to privacy will also be lost all-inclusively (Benaim 2008).One substantial measure that can be adopted in this concern is related to the development of privacy legislation. By announcing privacy legislation, it will become easy for the courts to determine breach of privacy by media and other fields. In this concern of conflict between privacy and freedom of speech, there is a firm argument that everything should not be left completely on the courts. Courts of different countries should not be empower to take decisions on their own and in this concern, Parliament should take part by forming a clear privacy right.

As well, the privacy right should also provide all-embracing public interest defences to actions for privacy violation. Till now, number of attempts had taken to introduce privacy laws, but nobody has attained success (Dunn n.d.). Initially, a committee was established in the year 1970 under the chairmanship of Kenneth Younger. It was established to evaluate that whether the privacy legislation should be brought in to defend against violations on privacy by private people and organizations. All these attempts were not supported by the government and they referred it to the Home Office Committee.The attempts to formulate privacy legislation were again tried by a smaller Committee in 1990 that was set up by Douglas Hurd, Home Secretary. Another significant attempt in this regard was from Culture, Media and Sport Committee Report of 2003. This committee strongly advocated that the government should reassess its resistance to the establishment of a privacy law. As well, it should pioneer legislation to clear up the security that people can expect from invasion by anyone, not only from the press (Culnan & Armstrong 1999). With the help of this legislation, it will become easy for courts to resolve conflicts related to the freedom of speech and privacy.

With the introduction of clear privacy legislation, a certainty can be introduced in spite of leaving cases entirely to the courts. With this protection of individuals privacy will become more easy and effective (Warren 2002). The introduction of privacy legislation was also associated with several conflicts, as some people believed that it will only benefit high class people (Smith & Milberg 1996). On the other hand, the Commission debated that it will offer free and speedy redress for everyone.  Politicians and celebrities give up or loss their privacy rights, because of being a part of public life, but they don’t do it willingly. This is the reason that why some of public figures or politicians do not enter public life or leave it untimely, as they don’t want to expose their private life in front of media. This in turn may result in public loss, as some good political candidate may not be able to operate successfully (Schauer 2001). Due to high risks of private life exposure, politicians or other public figures may withdraw from their existing roles.

The present climate is also full of high risks to public figures, as nowadays media fight to reveal more and more obscene aspects of their personal life from present and their past (Payne 1994). The inevitable decision is that both the right of privacy and freedom of speech are concerned, when the broadcasting media press discloses information regarding a celebrity or politician’s personal life. The rights need to be balanced in regard to the specific facts, as if not the courts would have to sacrifice the right of privacy or freedom of speech for defending other right (Kasper 2005). This can be done effectively if privacy legislation is been introduced.

Till now, government refused the proposition of a new privacy law, due to following reasons:

• Already there were number of other legislations that protect privacy such as, Data Protection Act 1998 (Warren 2002).
• In individuals’ cases, the consideration of competing rights that are freedom of speech and the right to privacy is a typical task of the courts instead of government or parliament.
• Establishment of a privacy law would act as a counter-productive, because final court verdicts would generate more publicity in contrast to the original publication and due to this, other conflicts will also emerge (Kemp & Moore 2007).
• The government feel that it should be handled by court through improving self-regulation.

All these reasons of the Government are not considered in an inclusive manner or by undertaking a glimpse of different conflict cases. The government holds above discussed notion, but it does not understand the severity of conflicts that are emerging from last several decades in concern to freedom of speech and privacy (Warren 2002). Till the time, privacy legislation is not introduced; it is not possible to attain balance between competing rights. For resolving existing conflict between the freedom of speech and right to privacy, a balance is essential and for this, clearly formulated privacy legislation is critical (Culnan & Armstrong 1999).

Balancing competing rights is a well-known procedure in several countries jurisdictions’. In balancing jurisdictions’ both rights are documented. One significant example of balancing competing rights is from the history of Germany. In Germany, it is vital for the civil courts to cautiously assess several pertinent factors at the time of considering privacy rights in opposition to freedom of expression (Kenyon & Richardson 2006). The pertinent factors refer to the means that are used to identify or have information about public figures like, photographs, articles or clips (Kersch 2003).As well, it includes the privacy right of the claimant at the specific time and place, and involvement of their family and children in publication. In addition to this, it is also considered that the disclosure of information does contribute towards public discussion or controversy or it was just a topic for gossip (Kenyon & Richardson 2006). All these standards were implemented by the German Constitutional Court in one of its significant verdict that was about Princess Caroline of Monaco.

This case described that the civil courts were unsuccessful to consider the Princess’s family at the time when she resisted stopping Bunte publication (a celebrity magazine) for publishing her pictures with her children. This appeal of the Princess was rejected by the Constitutional Court on the basis of argument that recreation and celebrity stories are not included in the German Basic Law’ free speech and press clause. According to the German Basic Law, the publication of the Princess pictures while shopping and visiting at beach club was allowed (Kenyon & Richardson 2006).  Similar was the situation with the Court of Appeal in England. The Constitutional Court has assumed that celebrities can become role models and general people have legitimate interest in having information about the facts of their lives (Kenyon & Richardson 2006). A role model or public figure did not have an authority on the disclosure of their photographs and personal information. They can stop media to take their pictures when they are at place, where they have valid expectation of privacy such as, their home or some private place of entertainment.

In the concern to Princess case, the European Court of Human Rights held that the German verdicts contravened Princess Caroline’s right to privacy. She was not having any public office and was not involved in any official functions and due to this; she was having complete right of privacy regarding her personal life facts or information (Kenyon & Richardson 2006). In regard to this case, the German courts given high consideration to the position of Princess and her pictures were taken when she was at public places (Schauer 2001). On the other hand, the European Court given consideration to the privacy of a public figure and said that her pictures were published without her permission that was inappropriate. Different verdicts in the case of Princess Caroline significantly illustrate about the processing of how different countries court can attain balance between these competing rights with the help of different evaluations (Kenyon & Richardson 2006). The evaluation of the relevant consideration can be done on the basis associated factors that may vary from one culture to another. Although, there will be disagreements, but that can be resolved by making some general considerations on the basis of culture and societal trends.

Like, previously it was said that media can publish details about a politician’s health in condition, when there is no basis to consider that it may have an effect on his/her ability to perform given roles. This norm was followed in some countries, where some don’t used to follow it like, the US and Britain. Changes in old statements and norms regarding public figures privacy are occurring all over the world (Kenyon & Richardson 2006). One substantial change occurred is in regard to politicians’ sexual orientation. It provides media with a power to expose some public figure as gay or lesbian without his/her consent. So, throughout changes, it can be said that although a person’s health and sexual conduct are protected with privacy right, but the extent of security against press in relation to personal life information’s will diverge substantially from one case to another (Schauer 2001). In this way, balance can be attained between competing rights with the help of divergent verdicts. One other substantial mean that can be adopted by courts to balance competing rights is to draw distinction between different types of speech that may be political or entertainment (Kenyon & Richardson 2006). Although, drawing distinction between speeches are complicated, but it is essential to attain balance.

If it is said that political speech of a politician is significant for public or society, than it can also be said that media is having a legitimate power to report politicians’ personal lives and activities (Lewis 2002). But it is not applicable in case of a player or movie star, as they do not hold any political power or authority. Because of this, public does not have the similar legalized interest in having information about their private life as they have for knowing about an individual from political background (Kasper 2005).     In this concern, the decision of the European Court of Human Rights was right, when it rejected the argument that the general public is authorized to see pictures of Princess Caroline, just because they feel interested in her life. In this concern, some people feel that that argument of role model is not appropriate, as it is because of individual’s own opinion to consider someone as role model (Kenyon & Richardson 2006). But, this does not give them a right to invade their privacy right, because of their own interest. No one can force other to sacrifice his or her privacy due to other’s interest in knowing about him/her (Schwartz 2000).

Conclusion

These discussions and different examples that resulted in conflict between right to privacy and to right of freedom evidence that there will always a conflict between these rights. This conflict can be resolved in different ways depending on the case and situations involved (Schwartz 2000). Every country can adopt a different approach, but it is essential to attain balance in some or other way. In addition to this, the one substantial approach that can be adopted is related to the introduction of privacy legislation. With the help of privacy legislation, it would become easy for courts to determine the appropriate rights of individuals regarding their privacy and violation of this by media in different cases (Collier 1995).The significance of privacy legislation needs to be understood for attaining balance between competing rights. Subsequent are the advantages of a privacy legislation that would assist courts in attaining balance between competing rights:

•Declaration of a privacy legislation or principle is important, as with this, it will become easy to identify who had violated the given rights to individuals and of press (Kasper 2005).

•Till now, all cases were tried to resolve with the help of Press Complaints Commission or courts, but they do not offer sufficient remedy to resolve conflicts. With the help of privacy legislation, it will become easy to resolve these types of issues. It will include privacy rights against everyone, instead of just against newspaper and magazines (Kemp & Moore 2007).

•In concern to media, it appears incorrect for courts to draw out breach of confidence action to address privacy. This does not assist courts in every kind of situations or cases like, when privacy should be protected and for whom and in what situations (Collier 1995).

In this way, it can be said that for attaining balances in competing rights, above discussed approaches need to be undertaken along with the formulation or announcement of comprehensible privacy legislation.

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