Consider a situation in which a celebrity sues a journalist for taking pictures of her when
she is with her children, such as theVon Hannovercase at the European Court of Human
Rights (2004). The claimant invokes her right to privacy, but the journalist can invoke
freedom of expression in his defense. At least at first glance, it seems that it is not possible
for both rights to prevail; therefore there is a conflict.Interpretation Of course that there is a conflict depends on interpretation to begin
with. For instance, for the right to freedom of speech to conflict with nondiscrimi-
nation, it must first be established that “mere words” can as such discriminate and to
define what really counts as “speech.” Interpretation is always a value-laden,
uncertain enterprise. In any case, once a conflict is established, two ways to solve
it are available: hierarchy and balancing.
Hierarchy In theory, rights may be listed in a hierarchy from most important to
least important, and in case of conflicts the more important right defeats the less
important one. This solution is often repudiated because the relative importance of
rights seems to depend on the facts of the case and cannot be determined
beforehand.
Many people think that the right to life is always superior to the right to privacy, but this
opinion might not hold in a particular context. Many think that the decision to end one’s life
is a private matter, and that the state should not interfere with it, even to protect life.
Furthermore, this strategy says nothing about cases in which two identical rights
are pitted against each other.
An exceedingly tragic situation occurred in the caseRe A (Children) (Conjoined Twins:
Surgical Separation)(2001) decided by the English Court of Appeal. In this case, two
conjoined infants could not survive together, and if they were separated, one of them would
certainly die. This made it necessary for the doctors to separate them, at the cost of the life
of one of them.Balancing Another alternative for solving conflicts is case-by-casebalancing.
Instead of creating an abstract hierarchy independent of the facts of the case in
which two rights are in conflict, each individual situation is looked at in isolation,
and the judge decides which right is more importantin that scenario. This solution
is generally more acceptable but is criticized for the lack of predictability it brings.
After all, how can we rely on our rights if we cannot know if they will be balanced
out of existence?
An example of this is the so-called “freezing effect” discussed in the context of the right to
freedom of speech: if one is not sure whether a certain speech is protected or not, and the
issue is so uncertain that it may lead to protracted litigation, one may simply decide not to
express one’s ideas, losing the benefits of the right in practice.Categorical BalancingThese difficulties have pushed legal academics to find a
middle ground between the predictability of hierarchy and the flexibility of balanc-
ing. One alternative would be the so-called “principled” or “categorical” balancing
approach, where the court decides for a specific case which right is the more
12 Human Rights 281