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28 Nottingham L.J. 52 (2019-2020)
Balancing Fundamental Rights in Private Law through the Double Proportionality Test

handle is hein.journals/notnghmlj28 and id is 160 raw text is: BALANCING FUNDAMENTAL RIGHTS IN PRIVATE LAW THROUGH THE DOUBLE PROPORTIONALITY TEST JOHN T CHEUNG* ABSTRACT Rights review in public law typically pits the rights of the individual against the interests of the government. However, the recent introduction of fundamental rights into private law raises the question as to how competing rights-based claims may be reconciled, given that both parties are able to plead the protection of fundamental rights in support of their respective positions. This article proposes that the 'double proportionality' test, which enables the interference with the rights of both parties to be assessed respectively to determine whether it is proportionate, represents the most promising solution to this difficulty. The test allows the courts to give sufficient attention to the rights of all involved, and just as importantly, enables courts to be seen as doing so. The article will also examine the jurisprudence on this area and criticise the courts' failure to apply the double proportionality test satisfactorily (or at all) in conflicting rights cases. Keywords: double proportionality; balancing fundamental rights; constitutionalisation of private law; horizontal effect of fundamental rights. INTRODUCTION We live in an age of balancing. In the context of rights review in public law cases, balanc- ing typically pits the rights of the individual against the interests of the government. It is a familiar process in which only one party - that is, the private claimant, as opposed to the public defendant - is generally able to invoke the protection of fundamental rights. However, the introduction of fundamental rights into private law in recent years - sometimes referred to as the 'constitutionalisation' of private lawl - raises the difficult question as to how competing rights-based claims may be reconciled, as both parties are potentially able to plead the protection of fundamental rights in support of their respective positions. In a nutshell, this article contends that the 'double proportionality' test, which enables the interference with the rights of both parties to be assessed respectively to determine whether it is necessary and appropriate, represents the most promising solution to this difficulty. The article is divided into two sections. First, I will argue that, in principle, the test is commendable for it allows the courts to give sufficient attention to the rights of all involved, and just as importantly, enables courts to be seen as doing so. In other words, its use is necessary to achieve substantive and procedural justice for both par- ties. Secondly, the focus of the article will shift to an analysis of the cases (primarily English decisions), where the double proportionality test has hitherto been confined to the context of cases involving a clash between privacy and the freedom of expression. Regrettably, it will be seen that the courts have time and again failed to apply the double *BA (Hons 1 Class) (Oxon), BCL (Dist) (Oxon). Pupil barrister at Temple Chambers, Hong Kong. I am grateful to the Hon Mr Justice Andrew Cheung, Chief Justice of the Court of Final Appeal of Hong Kong. All errors are, of course, my own. M Kumm, 'Who's Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law' (2006) 714 German Law Journal 341. 52

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