Freedom of Expression and Privacy - A European Balancing Act

Two of the most fundamental rights are freedom of expression and privacy. These rights are regulated in Article 8 and Article 10 in the European Convention of Human Rights (ECHR). These two rights can be in conflict with each other. The rights are not absolute, which means that they can be intruded upon when prescribed by law, legitimate aim or when necessary in a democratic society. The intrusion needs to be justified and proportional. The exceptions are in 8 (2) and 10 (2). The rights should be valued equally. All the countries that have implemented the ECHR have different legal systems and legal cultures. The interpretations of Article 8 and Article 10 ECHR are different depending on the legal systems. In this thesis Germany, the United Kingdom and Sweden will be compared. The three countries have implemented the ECHR as regular law, and have therefore recognized the European Court of Human Rights’ case law. The European Court of Human Rights has given some criteria. Unfortunately, the criteria are not specific enough to decide which right should be valued higher in a given situation. The protection of the rights can be in conflict and therefore it is important to define their limitations. The right that gets priority will interfere with the other right. Both of the exceptions are based in the public interest. To be able to explain what is of public interest, the courts need to consider a few criteria. The criteria are: contribution to a general debate, how well-known the person is, prior conduct of the person concerned, content, form and consequences and circumstances the photos were taken in. Contracting State cannot measure if they fulfill the requirements in Article 8 and Article 10 in the ECHR due to the lack of direction on how to balance these rights. The United Kingdom and Germany have both changed their legislation to adapt to the ECHR. Sweden has not yet changed the legislation due to the lack of direction for it to follow. The European Court of Human Rights’ is not a Court of Appeal. Their task is to protect and review if the Contracting States keep a minimum standard of Human Rights. The Contracting States have a margin of appreciation as long as the courts have considered all the criteria and the judgment is reasonable. The conclusion is that no one can answer how to balance these rights equally in a general principle. One right has to get priority and it is up to the Contracting States to decide which one.