Reflections on balancing Articles 8 and 10 in the context of MPI - past, present and future

This article examines speech/privacy balancing under the tort of misuse of private information, in order to argue that the past down-grading of privacy within the balancing act as a feature of pre-HRA jurisprudence, and of the early post-HRA years, could be replicated in future. It will be argued that the Strasbourg Court pays lip-service to the notion of the presumptive equality of Articles 8 and 10 ECHR, but it is nevertheless embracing the idea that the notoriety of the individual claiming privacy invasion should lead to a down-grading of their expectation of privacy when balancing the two Articles. This article proceeds to argue that, due to a range of current domestic factors, including recent judicial pronouncements as to the judges’ role under the HRA, the Strasbourg stance as to balancing may be more forcefully embraced domestically in future, meaning that a down-grading of claimed privacy interests may tend to occur: the current domestic rule as to the presumptive parity of Articles 8 and 10 in MPI cases could be undermined. This article, therefore, is intended to send a warning to practitioners and commentators that those concerned with the value placed on private information in Campbell should be watchful for attempts by the domestic judiciary to revise the presumptive parity rule in light of the Axel Springer decision in future.