Freedom of Expression and Protection from Defamation: Striking the Right Balance

Grant v Torstar Corp, 2009 SCC 61 (22 December 2009)

This Canadian Supreme Court decision draws on the freedom of expression guarantee in the Canadian Charter to establish a new common law defence of ‘responsible public interest journalism’ to an action for defamation.  The scope of this defence is similar to the expanded statutory defence of qualified privilege contained in the Defamation Act 2005 (Vic) s 30.

Read More

Fox Hunting and the Right to Private Life

Friend and Countryside Alliance v United Kingdom [2009] ECHR 2068 (17 December 2009)

In this case, the European Court of Human Rights unanimously held that a ban on fox hunting with dogs in the United Kingdom does not impinge upon the human rights enshrined in the European Convention on Human Rights.  The Court's analysis focused on the rights to respect for private life, freedom of peaceful assembly and peaceful enjoyment of possessions.

Read More

The Right to Free Expression and the Protection of Journalistic Sources: When Can a Journalist be Compelled to Reveal their Source?

Financial Times Ltd & Ors v United Kingdom [2009] ECHR 2065 (15 December 2009)

This decision explores the right to freedom of expression as it applies to the protection of journalists’ sources.  The Court’s finding of a violation in this case shows that, at least in Europe, compelling circumstances will be required before limitations on this protection will be considered necessary and justified in a democratic society.

Read More

Homelessness and the Right to Life, Liberty and Security

Victoria (City) v Adams, 2009 BCCA 563 (9 December 2009)

The British Columbia Court of Appeal has held that a city bylaw which prohibited homeless people from erecting any form of temporary shelter at night in a public park, in circumstances where the number of homeless people exceeded the number of shelter beds available, is a violation of the right to life, liberty and security of the person.

Read More

UK Supreme Court Considers whether the Right to a Fair Hearing Requires the Availability and Examination of Witnesses

R v Horncastle & Ors [2009] UKSC 14 (9 December 2009)

The new UK Supreme Court (replacing the House of Lords) has delivered an important judgment concerning the role of hearsay evidence; in particular, evidence adduced from witnesses who were unable to attend court either because they were dead or out of fear for their safety.  The Court held that where the evidence before a court is that of an identified but absent witness, there is no reason for imposing an absolute rule that such evidence should be excluded where it is the 'sole or decisive evidence' against a defendant, provided appropriate counter-balancing measures had been adhered to.

Read More

Right to Respect for Family Life and Equal Treatment: Fathers’ Right to Custody of a Child Born out of Wedlock

Zaunegger v Germany [2009] ECHR 22028/04 (3 December 2009)

In this case, the European Court of Human Rights held by six votes to one that the denial of a fathers’ right to custody of a child born out of wedlock violated his right to respect for family life under art 8, in conjunction with discriminatory treatment under art 14 of the European Convention.  The Court examined the tension between the right of fathers to have their family life respected and art 1626a § 2 of the German Civil Code and determined it amounted to unjustified discrimination against unmarried fathers on the grounds of sex in comparison with divorced fathers.

Read More

Balancing Freedom of Expression and the Right to Privacy

BKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) (02 December 2009)

In a case concerning the relationship between the right to freedom of expression of media agencies and the right to privacy of nursing home residents, the England and Wales High Court has conducted a balancing exercise and found that the public interest in the case favoured the right to freedom of expression.

Read More

What is a ‘Child’? Age Determination in Asylum Applications

A, R (on the application of) v London Borough of Croydon [2009] UKSC 8 (26 November 2009)

The difficulty in determining age has become prominent as a consequence of the increased movement of children around the world, and specifically the increased migration of unaccompanied young people.  It is an issue of particular significance, for a number of reasons.  States often have – or at least, ought to have – different policies and procedures in place in relation to the treatment of asylum seekers who are children.  These may relate, for example, to the provision of guardianship, the provision of legal aid, conditions of any ‘detention’, the substantive consideration of whether the asylum seeker satisfies the requisite test (ie the refugee definition), or access to particular social entitlements (housing, welfare, education etc).

Read More