14- Art 8 ECHR: the right to respect for family & private life

Question 1

What does Art 8 say?

Answer 1

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”

It’s a qualified right

Question 2

How might the state be able to interfere with Article 8?

Answer 2

Bc Art 8 is a qualified right, the state might be able to justify its interference with the operation of this right:

Any limitation must be:

1. In accordance with the law
2. Necessary and PROPORTIONATE
3. For 1 or + of the following aims:
   
   • interests of national security
   • interests of public safety or economic well-being of the
     country
   • prevention of disorder/crime
   • protection of health or morals
   • protection of the rights and freedoms of others.

Question 3

Which 4 interests does Art 8 protect?

Answer 3

Everyone has the right to respect to:

1. Private life
2. Family life
3. Home
4. Correspondence

Question 4

What does ‘everyone’ include in the definition of Art 8? And ‘respect’?

Answer 4

EVERYONE: It includes business.

RESPECT: This requires the state not to interfere and it also means the state should take positive steps to protect these rights.

Question 5

What case considers the notion of ‘respect’ for private life?

Answer 5

Sheffield and Horsham v UK (1999)

Facts:

• Both applicants had undergone gender reassignment surgery.
• The state wouldn’t recognise their new gender status.
• There was no breach of Art 8 as a nation could refuse to re-register birth details of people who had undergone gender reassignment surgery.

Point of law

• Art 8 was not breached but the ECtHR suggested that UK courts should take positive steps to bring the law in line with changing social attitudes towards transsexualism.
• English law has since changed by the Gender Recognition Act 2004, which allows transsexuals to apply for legal recognition for their new gender.

Question 6

What is the meaning of ‘private life’ under Art 8?

Answer 6

With regard to Art 8, this includes matters such as physical and psychological integrity, sex life and gender, personal data, reputation, names and photos.

Question 7

What case can be used to illustrate the meaning of ‘private life’?

Answer 7

Halford v UK (1997)

Facts:

• C was Assistant Chief Constable of a police force.
• She had been refused a promotion and she claimed that her phone and office phone calls had been intercepted to obtain info against her in the discrimination.
• She claimed a breach of Art 8
• The ECtHR held that the office phone interception had been a breach, but not her home phone.

Point of law:

• Interception of employee’s office telephone calls is unlawful.
• Private life under Art 8 includes surveillance.

Question 8

What do the 3 Von Hannover cases illustrate?

Answer 8

Private life and the intrusion by the media.

Question 9

What is the ruling for the Von Hannover cases?

Answer 9

1. Von Hannover v Germany (No.1) 2004

Facts:

• German court granted an injunction preventing the publication of photos in which Princess Caroline appeared with her children.
• This decision was made because the need for the protection of children is greater than that for adults.
• ECtHR held there had been a breach of Art 8

Point of law:
- Everyone, including celebrities, had a legitimate expectation hat their private life would be protected.

2. Von Hannover v Germany (No.2) (2012)

Facts:

• German magazines published photos showing the Princess and her husband on holiday.
• One accompanied an article about the ill health of her father.
• Other photos were considered an invasion of privacy, but the one about the father was said to be connected to a matter of public interest.
• ECtHR held there had been no breach of Art 8.

Point of law:
- There might not be a violation of Art 8 if the content claimed to be a breach is connected to a matter of public interest.

3. Von Hannover v Germany (No.3) (2013)

Facts:

• A German magazine published photos of the Hannover family villa and photos of the Princess with her husband.
• The photos were taken without their knowledge but they disclosed no info about the location.

Point of law:
- The ECtHR found no breach of Art 8. They held German courts had given consideration to the facts and had complied with its positive obligations under the Article.

Question 10

What is the meaning of ‘family life’ under Art 8? What does it extend to?

Answer 10

With regard to Art 8 , the right to enjoy family relationships without interference from the state.
- This includes the right to live with your family and, where this is not possible, the right to regular contact.

‘Family life’ can include the relationship between an unmarried couple, an adopted child and the adoptive parent, and a foster parent and fostered child.

Question 11

What cases can be used to illustrate the scope of ‘family life’?

Answer 11

1. Gaskin v UK (1989)

Facts:

• Graham Gaskin was placed in public care in the UK as a baby, where he stayed until he was 18.
• Gaskin claimed he had been abused during his time in care and he requested access to the records kept on him Social Services. – When full access was denied, he applied to the ECtHR.

Point of law:

• The Court decided that Gaskin’s Article 8 right to have his private and family life respected by the State had been breached by the gov bc there had been no independent appeal body to which Gaskin could have taken his case.
• The Court also decided that people in Gaskin’s position, who had been in public care as children, should not be obstructed from accessing their care records.

2. Johannsen v Norway (1996)

Facts:

• The biological parents of a child opposed the decision of the State with respect to adoption.
• The mother had been subject to domestic violence and had a chaotic lifestyle. There had been several interventions by social services.

Point of law:

• ECtHR stated that particular weight should be attached to the best interests of the child, which may override those of the parents.
• The question under Art 8 was how the rights of the child and the parents should be balanced.

Question 12

What is the meaning of ‘home’ under Art 8?

Answer 12

With regard to Art 8, it’s the right to enjoy your home peacefully, rather than a right to a house.

Public authorities shouldn’t enter homes without permission.

Question 13

What is the meaning of ‘correspondence’ under Art 8?

Answer 13

With regard to Art 8, this is the right to uninterrupted and uncensored communications with others.
- In some circumstances, a public authority might interfere with this right in order to protect public safety and the freedoms of others. - Investigatory Powers Act 2016, an act which legalises a range of tools for hacking by security services in England.

Question 14

What case can be used to illustrate the meaning of ‘correspondance’?

Answer 14

Barbulescu v Romania (2017)

Facts:

• C used his work account to sell personal messages, which was not allowed under the company rules.
• The company investigated his communications, including his private messages and dismissed him for unauthorised use of the internet.

Point of law:

• With a Maj ruling of 11 to 6, the Grand Chamber held that the employee’s right to private life and correspondence under Art 8 had been breached by the employer’s monitoring.
• Its conclusion was that the Romanian courts had failed to strike a fair balance between the opposing interests, in particular the employee’s right to respect for his private life and correspondence and, on the other hand, the employer’s right to take measures to ensure the smooth running of the company.

Question 15

How are the ECHR obligations in relation to respect for ‘private life’ compatible with English law?

Answer 15

There is no right to privacy in English law. Art 8 is therefore not available in private disputes, only in cases involving a public authority.

However, there are parts of English law that relate to privacy, including:

1. Tort of misuse of private info
2. Tort of defamation
3. Protection from Harassment Act 1997
4. Data Protection Act 1998
5. Regulation of Investigatory Powers Act 2000
6. Investigatory Powers Act 2016

Question 16

Compatibility with ECHR: How does the tort of misuse of private info reflect the compatibility of English law with ECHR?

Answer 16

Misuse of private information is a tort.

The courts often have to balance individual rights to privacy and to freedom of expression (Art 10).

Question 17

Compatibility with ECHR: Which cases show a contrast in the development of the tort of misuse of private info?

Answer 17

1. Wainwright v UK (2007)

Facts:

• The Applicants, a mother and her son Alan, who had physical and learning difficulties, attended a prison to visit a stepbrother.
• They were asked to consent to a strip-search bc the prisoner was suspected of using drugs and they reluctantly agreed.
• Various breaches of procedure took place during the strip-search.

Point of law:

• Article 8 protects physical and moral integrity, and the court found a violation of this right.
• The absence of an effective domestic remedy, in particular the absence of a general tort of invasion of privacy, resulted in a breach of Article 13 (right to a remedy).
• The applicants were awarded 3,000 Euros each in damages for the distress caused to them.

2. Campbell v MGN Ltd (2014)

Facts:
- Naomi Campbell was photographed coming out of a Narcotics Anonymous meeting. The newspaper published them.

Point of law:

• The Court stated that Art 8 and 10 are now part of a claim for breach of confidence.
• The publication of photos outside a rehab clinic was a disproportionate interference with her right to privacy.

Question 18

Compatibility with ECHR: What case shows the approach of English law to the overlap of Art 8 and 10?

Answer 18

PJS V News Group Newspapers Ltd (2016)

Facts:
- C applied to the court for an injunction to prevent the publication of the fact that he had had a three-way sexual encounter.

Point of law:

• Here it is stated that case law establishes that neither Art 8 nor 10 has preference over the other.
• Criticism of a person’s conduct cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity, which is of no public interest in a legal sense. - This rules out one of the defences to a defamation claim.

Question 19

Compatibility with ECHR: Which case shows the approach of English courts to access of info, particularly where a child is involved?

Answer 19

Axon v Secretary of State for Health (2006)

Facts:

• C sought a declaration that a doctor was under no obligation to keep confidential advice and treatment proposed to a young person under 16, in respect of contraception, sexually transmitted infections and abortion.
• She wanted a declaration that a doctor must inform parents, unless it would prejudice the child’s physical/mental health.

Point of law:
- Provided the child is Gillick competent, the parental right to determine medical treatment is ended or else there is a potential violation of Art 8.

Gillick competence: Term used to assess whether a child has the maturity to make their own decision and understand its implications.

Question 20

What are the key cases for Art 8- English law: tort of misuse and private info?

Answer 20

1. Wainwright v Home Office (2003)
2. Campbell v MGN Ltd (2004)
3. PJS v News Group Newspapers Ltd (2016)
4. Axon v Sec of State for Health (2006)

Question 21

Compatibility with ECHR: How does the tort of defamation reflect the compatibility of English law with ECHR?

Answer 21

The law on defamation is largely compatible with ECHR.

It comes in 2 forms: libel (permanent like broadcasting) and slander. (transient like spoken or gestures).

 - C needs to prove the statement complained of is:
      1. Defamatory (an ordinary person would think less of them)
      2. Refers to them
      3. Published to a 3rd party. 

The Defamation Act 2013 requires C to show the publication caused or is likely to cause them serious harm- in the case of businesses this means serious financial loss.

DEFENCES TO A CLAIM FOR DEFAMATION

• Include truth, honest opinion, public interest, internet defences.

UK LEGISLATION

• Par has created a number of Acts to help protect a person’s private life, including civil and criminal sanctions.
• However, the most sought-after remedy is usually an injunction preventing a publication containing defamatory information.

Question 22

Compatibility with ECHR: How does the Protection from Harassment Act 1997 reflect the compatibility of English law with ECHR?

Answer 22

Originally introduced to deal with stalking, but includes harassment motivated by race or religion and some forms of protest.

The Act gives criminal and civil remedies. There are 2 crim offences:

 1. A conduct that is considered harassment
 2. A more serious offence where the conduct puts the victim in fear of violence. 

Civil remedies include an injunction as well as awarding damages to the victims.

Question 23

Compatibility with ECHR: How does the Malicious Communications Act 1998 reflect the compatibility of English law with ECHR?

Answer 23

It states it’s an offence to send another person a letter/electronic communication which conveys:

 1. an indecent/grossly offensive message
 2. a threat
 3. false info

Guilt requires intention to cause distress/anxiety to the recipient/any other person.

Question 24

Compatibility with ECHR: How does the Data Protection Act 1998 reflect the compatibility of English law with ECHR?

Answer 24

It controls how personal info is used by organisations, businesses or the government.

The law has developed to give some protection from what might be considered an invasion of privacy and a person’s right to a private life.

Question 25

Compatibility with ECHR: How does the Investigatory Powers Act 2016 reflect the compatibility of English law with ECHR?

Answer 25

The aims of the Act are, among others, to combine the powers already available to law enforcement and security/intelligence agencies to obtain communications and data about communications.

The ruling from the Court of Justice of the EU in the case of Tele2Sverige and Watson (2016) suggests this act is likely to not be compatible under Art 8 as its powers are too wide-reaching and indiscriminate.

Question 26

How are the ECHR obligations in relation to respect for ‘family life’ compatible with English law?

Answer 26

The HRA 1998 along with Art 8 has influenced the development of the law in the UK.

1. Wood v Commissioner of Police for the Met (2009)- issue of taking photos and their retention.
2. AB v Sec of State for Justice (2009)- in terms of sexuality and gender.