Page 311 - Law and the Media

Law and the Media
the court must take account of the principles applied by the European Court
of Human Rights in relation to the award of compensation under Article 41
of the Convention.

Article 41 provides that:

If the Court [of Human Rights] finds that there has been a violation of the
Convention or the protocols thereto, and if the internal law of the High Contracting
Party concerned allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction to the injured party.

However, damages cannot be awarded in respect of judicial acts done in good faith, other
than damages to compensate a person for detention under Article 5(5) of the Convention
(Section 9(3) HRA).

Declaration of incompatibility
If a court is satisfied that primary legislation is incompatible with the Convention it may
make a declaration of that incompatibility (Section 4(2) HRA). To date only two such
declarations have been made, in relation to a provision of the Consumer Credit Act 1974
(Wilson v First County Trust (2001)) and relation to provisions of the Mental Health Act
1983 (R v Mental Health Review Tribunal ex parte H (2001)).

There is a fast track for the amendment of primary legislation to bring it into line with the
Convention if such a declaration is made (Section 10 HRA).

19.2.9 Can the HRA have any effect on disputes between ‘private’
bodies or individuals?
As stated above, the HRA is only directly binding on public authorities. In other words, it has
only vertical application (only applying to the relationship between individuals and the
State).

However, because courts and tribunals are public authorities (Section 6(3)(a) HRA) they will
act unlawfully under Section 6(1) HRA if they act in a way that is incompatible with
Convention rights. This means that the HRA has potential horizontal application (extending to
the regulation of relations between private individuals or bodies, allowing Convention rights to
be invoked by them in private law disputes).

In Douglas v Hello! Ltd (2001), the Court of Appeal suggested that as a result of the HRA the
courts were under a positive duty to develop the common law in accordance with the
Convention. Furthermore, it is clear the HRA requires courts to interpret statutes to ensure
compatibility with Convention rights even in cases in which no public body is a party (Wilson v
First County Trust (2001)). In addition, the HRA makes special provision in relation to
measures that might affect the exercise of the Convention right to freedom of expression
(Section 12 HRA), and it is clear that, at least in this area, it has horizontal effect.
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