Page 312 - Law and the Media

The Human Rights Act 1998
19.3 The Convention rights

19.3.1 General principles

Substantive rights
The HRA incorporates most of the substantive rights of the Convention. For the purposes of
the media, the most important rights are:

The right to respect for private and family life (Article 8 of the Convention)
Freedom of thought, conscience and religion (Article 9 of the Convention)
Freedom of expression (Article 10 of the Convention).

Most Convention rights impose negative obligations in the sense that the state is required to
abstain from interfering with a specific human right. However, sometimes the Convention
requires public authorities to take positive steps to protect rights. These include the right to
life, the prohibition from inhuman treatment, the right to respect for private life, the right to
freedom of religion, thought and conscience, the right to freedom of expression, freedom of
assembly, the right to possession of property and the right to education.

The positive obligations accepted by the Court fall into three categories:

1. The obligation to change a law or administrative practice
2. The obligation to provide financial assistance, and
3. The obligation to intervene in the relationship between individuals in order to protect
‘private’ violations of rights protected by the Convention.

Breach of qualified rights
However, some rights, including the rights in Articles 8, 9 and 10, are ‘qualified rights’. In
other words, they are subject to a list of ‘exceptions’ or restrictions.

When it is claimed that there has been a breach of a qualified right:

1. The claimant must satisfy the burden of proving on the balance of probabilities that there
is a breach of the right on the face of it; if so
2. The public authority must prove, on the balance of probabilities, that it is entitled to
restrict the qualified right by showing that:
It has acted ‘in accordance with the law
The aim of the restriction in question is one of those identified in the particular
Convention right as a being a ‘legitimate’ restriction, and
The restriction on the Convention right is ‘necessary in a democratic society’.
The nearest paraphrase of ‘necessary’ is ‘really needed’, in other words the
interference must correspond to a pressing social need and be proportionate to
the aim pursued.
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