art 8- right to respect for private and family life, home and correspondence Flashcards
what does art 8(1) cover?
everyone has the right to respect for their private life, home, family life and correspondence. it is a qualified right so must be balanced against other individual rights and wider community.
what is art 8 based on?
this is based around respect for these aspects of out personal life. the states must take a positive step to protect these rights including keeping laws under review. it is a broad scope.
what are the 5 areas to cover in art 8
- private life, including the intrusion into private life and the principle of the freedom of expression
-family life
-home
-correspondence
-art 8(2) prescribed by law for a legitimate aim and be necessary in a democratic society
what is the meaning of private life?
the meaning is very wide and expanding overtime, therefore not capable of an exhaustive definition. it must not be confused with the idea of privacy alone.
case example- pretty v uk- woman with MND wanted to control the time and manner of her death, no breach.
what are the cases for sexual identity and gender?
Sheffield v horsham- this is the refusal to recognise new sexual identities of applicants who had undergone gender realignment, no breach.
Goodwin- breach, no hardship or detriment to wider community from transgender adults
what is private life- sexual identity and gender?
This includes sexual orientation, gender
the living instrument principle reflects the reality of relationships within society
what is equality and universality?
this is sam sex marriages, no consensus amongst the states. if the state provide civil partnerships option it can not be discriminated.
what is private life- personal data?
This includes data relating to physical and social identities, data protection act 2018
medical records- vital to respect health data. however consider disclosure.
denying adults access to child medical records if the child is of hillock competence is not a breach.
retention of DNA- including photographs, videos, finger prints and DNA.
case- marker v uk applicants asked for fingerprints and DNA to be destroyed, police refused, breach of art 8.
what is private life and names?
names are central to identity, choice of child name is a private family matter.
if likely to leas to a child suffering prejudice it could breach art 8.
case example- Johansson v Finland
what is private life and reputation?
To invoke art 8, individual can only take a public body to court. in English law thee has never been a right to privacy, other than the data protection act 2018.
what does the privacy, reputation and press intrusion cover?
The courts must balance competing interests under art 8 and art 10. The case is taken to court under the domestic law of confidentiality, this shows the horizontal effects of the ECHR as the court are a public body and must take account of convention rights.
what are the key cases for reputation, press intrusion and privacy?
Murray/ Weller- both of these cases were held in relation to publishing photos of their children in a public place. breaching both cases.
attributes of the claimant/nature of activity/place/absence of consent/effect on c/purposes of the information.
what are the other cases for intrusion into private life of tabloid press?
courts cinder whether it is in the best interests, not just the interests of the public.
case example- campbell- publishing photos outside rehab were disportioncate, breached art 8 despite in public domain.
-PJS- c applied for injunctions to prevent publication that he had a 3 way sexual encounter. injunction upheld.
what is family life?
under art 8 you have the right to enjoy family relationships without interference from the state. it has developed overtime to reflect changes in society and therefore also not capable of an exhaustive definition. scope of family life is very broad and depends on close family ties and is a matter of fact and degree.
This includes rights to enjoy family life relationships without the interference of the state unmarital couples, children, transgender and same sex couples.
what are the key cases of family life?
Kroon v netherlands- defined family in terms that do not allow legal forms to prevail over biological and social reality. father wasn’t allowed to register birth of child.
Ghaidan v Godin-mendoza- spouse of family member could inherit tendency. same sex couples could not be classed as a spouse.
what can the state interfere with?
the state can interfere with the right if in the best interests of the child or in immigration matters.
case- johannsen v Norway- child welfare is paramount, no violation of art 8 in respect of taking child into care/adopt. however, violation to deny contract.
- Alfie Evan- child welfare is paramount, no violation of art 8. best interests of Alfie to terminate care.
-Agyarko and Ikuga- in this appeal both applicants had been refused permission to remain in the uk, they argues that this would breach art 8 right to family life. their family relationship was outside the uk therefore no breach.
what does home cover?
art 8 places a duty on the state to respect a persons existing home. This is the right to peaceful enjoyment of one. it does not guarantee right to a home, unless severe disability. This includes, main home and second homes. also includes buyers, renters and children etc living at home.
case- khan- art 8 applies to all applicants whether they are home owners or merely living as occupants.
-niemietz v Germant- police searched a lawyers office to try to identify a suspect. the search was part of home.
traveller communities?
many of cases brought before agains the uk with respect to home relates to claims against the traveller communities.
case- Connors v uk/ price v Leeds- art 8 is engaged where disputes relate to eviction from lawful traveller sites Connors), but not where occupation is unauthorised such as on a park. (price)
what is correspondence?
This includes all form of communication, phone calls, letters, texts, emails and social media.
cases- Klass v Germany- secret surveillance of citizens tolerable under ECHR so far as it is necessary. must be appropriate
-halford v uk- the interception of the telephone calla on employee in private exchange is a breach of art 8.
-copeland v uk- the interception or telephone calls of an employee in private exchange was a breach of art 8.
what is bulk surveillance?
this evokes art 8. in the uk the investigatory powers act 2016 legalises a whole range of surveillance by the security services, unmatched by any wester country. the act sets ut a framework to prevent abuse of power:
case- news of the world- scan qr to make not about phone hacking
-big brother watch- bulk interception regime uncovered by Edward.
what is art 8 (2) permitted restrictions?
art 8 (2) sets out when the state can restrict the rights under art 8 (1)
what is PLAN?
p- prescribed law- common law of the state which has a clear legal basis to restrict art 8, breach of confidence, investigatory powers 2016
LA- legitimate aim- interest of national security, public safety or economic well-being of a country for the prevention of disorder or crime for the protection of health and morals, or the protection of rights and freedom of others.
N- necessary in a democratic society- proportionality and margin of appreciation to decide if the interference with the right is justified.
what is proportionality?
proportionality, must not crack a nut with a sledgehammer.
what is the margin of appreciation?
narrow margin= less leeway for the states for example children’s rights
wide margin= allows the state more leeway, no common ground against contrasting states such as moral issues and assisted suicide.
