3B.3.3 Article 8 Flashcards
Article 8
The right to respect for family and private life.
Is Article 8 qualified?
Article 8 is a qualified right, which means the right can be limited.
Any limitation must have regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.
What are the four aspects to Article 8?
- Private life
- Family life
- Home
- Correspondence
What does ‘respect’ mean in Article 8?
Article 8 is based on the concept of ‘respect’ of the rights. This means that the state must take positive steps to protect these rights.
This was considered by the ECtHR in Sheffield and Horsham v UK.
Sheffield and Horsham v UK
State refused to recognise gender reassignment.
Legal principle: State should be pro-active in reviewing the law and not interfere with rights.
Private life
Aspects of the right to private life include:
- The physical and psychological integrity of a person
- Sexual life and gender
- Personal data
- Reputation
- Names
The meaning of ‘private life’ is very wide, and must not be confused with the idea of privacy. It has been given a broad, inclusive meaning by the ECtHR.
Cases: Pretty v UK, Bensaid v UK and Halford v UK.
Pretty v UK
The ECtHR set out the scope of Article 8 as including physical social identity, gender identification, name, sexual orientation and personal development. The case emphasised the importance of personal autonomy and dignity as factors involved in decision making.
Bensaid v UK
The ECtHR said that ‘mental health must be regarded as a crucial part of private life’.
Halford v UK
Alison Halford was an assistant chief constable. Her telephone calls were intercepted by senior police officers to obtain information regarding a sex discrimination claim she was pursuing in an employment tribunal.
Held: The interception of the telephone calls of an employee in a private exchange was a breach of the right of a private life under Article 8.
Sexual identity and gender
The right to a private life also includers sexual identity.
The ECtHR is a ‘living instrument’, meaning it is fast changing.
Case: Steinfield and Goodwin v UK.
Steinfield
C wanted to have an opposite-sex civil partnership instead of marriage (because of the sexist administrative process of marriage). C won and the SC made a statement of incompatibility.
Theresa May changed the law to make civil partnership for mixed-sex couples legal.
Goodwin v UK
The ECtHR held that barriers imposed on a transgendered person violated their rights to private life.
Personal data
Personal information and data are also included in the right to private life. This means things such as DNA details and medical records.
Cases: MS v Sweden, Gillick and Axon.
Gillick (1984)
Mother wanted to prevent under 16s from accessing contraception without parental knowledge/consent. This was for religious reasons.
Held: A child is “Gillick” competent if they can understand the risks and consequences. If a child is “Gillick” competent then they have the right to privacy (and right to consent).
Axon (2006)
Mother wanted to prevent under 16s from accessing abortions without parental knowledge/consent. This was because the mother was concerned about potential negative mental health effects on the child after an abortion. C lost case.
Held: Provided the child is Gillick competent, the parental right to determine medial treatment is ended.
MS v Sweden (1999)
Respecting the confidentiality of health data is a vital principle”.
Names and Article 8
Names are seen as central to the idea of identity.
Johansson v Finland (2002): Parents who wished to name their child ‘Axl Mick’ were denied this right by registrars in Finland. This was in breach of Article 8. The ECtHR held that the choice of a child’s name was a private family matter. The name was not ridiculous or whimsical or likely to lead to the child to suffer prejudice.
The right to privacy in the UK
In English law there has never been a right to privacy.
The Data Protection Act 1998 controls how personal information is used by organisations, businesses or the government. Everyone responsible for using data has to follow strict rules.
The intrusion into private life has always been a feature of the tabloid press. The principle of freedom of expression under Article 10 overlaps with Article 8. The difficulty is in establishing what is in the public interest and what is a mere invasion of privacy. The courts have had to balance individual rights to privacy and to freedom of expression.
- The cases of Wainwright v Home Office (2003) and Campbell v MGN Ltd (2004) show a contrast in the development of the law in England.
Can Article 8 be used in private disputes?
No - Article 8 is not available in private disputes. It can only be raised in cases involving a public authority. The court, however, must take into account ECHR as it must not make a decision that is incompatible with ECHR.
Campbell v MGN [Mirror Group Newspapers] (2004)
Naomi Campbell (“supermodel”) denied taking drugs but was pictured in the Mirror outside a NA meeting. Although the original article was supportive, she initiated a case against MGN the day after they printed more articles which were scathing. Held: No question of priority of Article 10 over Article 8. The publication of photographs were a disproportionate interference with her right to privacy. Naomi Campbell succeeded even though the newspaper publisher was not a public authority.
PJS v News Group (2016)
Famous person (thought to be a footballer?) had a threesome. He sought an injunction from printing due to private right. The Sun appealed but the Supreme Court held it was not in the public interest and the injunction was done to protect the wife and children of the unnamed celebrity. Injunction granted.
Wainwright v Home Office (2003)
Cs were strip-searched for drugs on a prison visit. At trial, the judge found there was a breach of article 8 because the prison officers should have provided a reason.
Held: There is a right to not be touched - qualified.
Family life
What constitutes a family develops over time to reflect social reality.
Family includes:
- children and grandchildren (Marckx v Belgium (1979)).
- adoptive relationships (Pini and Others v Romania (2004)).
- cohabiting heterosexual couples (Kamal v UK (2017)).
- foster relationships (X v Switzerland (2017))
- same sex relationships (Schalk and Kopf v Austria (2011))
What constitutes a family depends on close family ties and is a matter of fact and degree – Lebbink v Netherlands.
Does the concept of family continue after divorce?
The concept of a family continues after divorce (Berrehab v Netherlands (1989)).