Article 8 Flashcards
What is Article 8?
Article 8 is the right to respect for private and family life. This is a qualified right which means the right can be limited in accordance with the law and if it is to meet a legitimate aim (Article 8 (2)). Limitations must be proportionate and in accordance with the law. There should be a fair balance between the rights of the individual and of the community as a whole
Step 1: Article 8 (1) protects 4 rights
- private life
- family life
- home
- correspondance
Step 2: Article 8 (1) - Private life
right to private life is not the same as privacy
Botta v Italy: private life includes a ‘person’s physical and psychological integrity’
Step 2: Article 8 (1) - Private life
What is included in a person’s physical and psychological integrity?
- physical and social identity, gender indentity, name and sexual orientation
- Pretty v UK
- their sex life and gender
- reputation
- autonomy and dignity
- Peck v UK
- photos
- personal data
Step 2: Article 8 (1) - Private life
Sexual identity and gender
The ECtHR is a living instrument which develops in line with society.
Private life includes sexual orientation and freedom (Dudgeon v UK) with includes transgender men and women, any laws treating homosexuals less favourably are also key features (Peck v UK).
Goodwin v UK: barriers imposed on a transgender person violated Article 8
Step 2: Article 8 (1) - Private life
Police Searches
police searches may be jusified if the aim of the state is to prevent crime or uphold national security. Any interference must have a legal basis and be proportionate
Gillan and Quinton v UK: police extended powers under s.44 Terrorism Act 2000 to stop and search any person without reasonable suspicion (usually required). Despite wide margin of appreciation in issues of national security, the ECtHR believed this was a disproportionate use of power
Step 2: Article 8 (1) - Private life
Surveillance
Halford v UK: police were listening to the telephone conversations of the Assistant Chief Constable whilst she was at work. There was no legal basis allowing the monitoring of the police telecommunication system, therefore, this was a breach
Step 2: Article 8 (1) - Private life
Personal data
medical data is considered confidential for adults (MS v Sweden) and children who are considered Gillick competant (ie, old enough to consent to medical treatment without the permission of their parents)
Axon v Secretary of State for Health: If the child is considered Gillick competant then the parental righ to determine medical treatment is ended
Step 2: Article 8 (1) - Private life
Personal data
DNA
Criminal Justice and Police Act 2001 allows police to retain DNA samples on a database for offenders. ECtHR in S and Marper v UK rules blanket retentio of DNA profiles taken from innocent people posed a disproportionate interference with the right to private life
Protection of Freedoms Act 2012 only people convicted of an offence will have their fingerprint records and DNA profiles retained indefinately
Step 3: Article 8 (1) - Family life
ECtHR defined ‘family life’ to include different types of family relationships including: children, grandchildren, adoptive and foster relationships (Gaskin v UK), relationships after divorce, other relations with close family ties, married couples and co-habiting unmarried couples
Same sex couples were at one time categorised under ‘private life’ however, since Schalk and anor v Austria they can be categorised under family life
Step 3: Article 8 (1) - Family life
What constitutes a family
what constitutes a family depends on close family ties and is a mtter of fact and degree (Lebbink v Netherlands)
Art 8 gives people the right to enjoy these family relationships without interference by the state. This includes the right to live with or have regualr contact with your family. There are many aspects of family life that is affected by the state, for example:
- care proceedings (including taking a child from their home into care)
- access to a child
- forced breakup of a family due to immigration rules
Step 3: Article 8 (1) - Family life
Children
family family proceedings cases involve child contact and care decisions. The decision of the state to remove a child into care must be done proportionately as there is a wide margin of appreciation in these cases. However, the child’s rights are paramount (Yousef v Netherlands)
Johansen v Norway: court stated that particular weight should be attached to the best interests of the child, which may override those of the parent
Step 3: Article 8 (1) - Family life
Removal from the state
removing people who have a family life can cause issues with immigration rules, for example, if people are in a relationship where one cannot remain in the ocuntry due to immigration rules but the other does have the right to stay
Agyarko and Ikuga v Secretary of State for the Home Department: both women wanted to stay in the UK to be with their family, but were here illegally. Only in exceptional circumstances would they be allowed to stay, ie. where there are insurmountable obstacles in the way
The state can in some cases, deport criminals. However, this didn’t occur in Nasri v France where a convicted rpaist who was deaf, unable to speak and illiterate was allowed to stay in France as that is where his family lived
Step 3: Article 8 (1) - Family life
UK examples of family and private life
the positive obligations from Art 8 and the provisions of the HRA have led to developments in the UK law to protect both family and private life
Wood v Commissioner of Plice of the Meteropolis: police taking and retaining photos of protestors opposed to the arms trade was a violation
R (T) v CC Greater Manchester Police and ors: blanket disclosure of minor previous convictions during employment checks was disporoportionate under Art 8
s.83 Sexual Offences Act 2003 requires a person who has been sentences to more than 30-moth imprisonment for a sex offence to notify the police where they are living and any travel they do for the rest of their life. Later the UK SC held the inability to review this requirement was disproportionate and was a violation
AB v Secreyary of State for Justice: no justification to refuse a pre-op transgender woman who was held in a male prison the right to move to a female prison = violation
Step 4: Article 8 (1) - Home
‘home’ is given a wide definition, yet there’s no right to have the state provide a person with a home (apart from some people, eg. the state doesn’t have to provide accomodation for the severly disabled)
The article palces a duty on the state to respect a person’s existing home, this means the state must allow access to the home and the right to live in it (ie. peaceful enjoyment of their property)
Step 4: Article 8 (1) - Home
Where can ‘home’ include?
‘home’ can include where you live permanently or where you live sometimes (eg. second home). The law treats owners and occupiers of property equally (Khatun v UK).
In Connors v UK the ECtHR accepted that land where caravans were parked lawfully was the person’s home whereas caravans parked on a playong field were not (Price v Leeds City Council)
Niemietz v Germany: police searched a lawyer’s office to try to identify a suspect. The search was part of ‘home’ and the lawyers private life
Step 5: Article 8 (1) - Correspondance
includes telephone conversations, text messages, emails, fax, letters etc
if the state wants to intefere with any of these things, they require justification under Article 8 (2), this extends to interference with correspondance of people held in custody
therefore, one can look to see if the state body has a clear policy on email use and interference, as this may consititute a violation
Barbulescu v Romania: employer was found to be in violation as their IT policy didn’t set out the extent to which their internet usage and online communications would be monitored
Step 5: Article 8 (1) - Correspondance
UK Law
No specific privacy law in the UK
Art 8 is not available in private disputes and can only be raised in cases involving a public authority
Confidential documents are covered by the tort of Misuse of Private Information, and Tort of Breach of Confidence
Data Protection act 1998 controls the use of personal data by businesses and the state
Step 5: Article 8 (1) - Correspondance
Press Intrusion
press intrusion can be justfied if it’s in the interests of justice according to Article 10. The courts try to balance the freedom of the press with the right to privacy, neither Article 8 or 10 have priority over the other (PJS v News Group Newspapers Ltd). Decisions to grant injunctions to respect a person’s right to a private life will be decided on the facts of each individual case
- Campbell v MGN Ltd:* the publication of photographs of her outside a rehabilitation clinic was a disproportionate interference with the rights to privacy, even though she was recieving treatment in the public domain
- Murray v Express Newspapers PLC:* the children of people who were famous should not expect to be photographed without their knowledge or consent if they has not publicised their children
Step 5: Article 8 (1) - Correspondance
Protection from Harassment Act 1997
s. 1 states a person must not pursue a course of conduct -
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other
Act has civil and criminal remedies - summary offence with up to 6 months imprisonment (criminal) or injunctions/damages (civil)
It is a criminal offence to pursue a course of conduct amounting to harassment. It’s also a crime when the conduct puts the V in fear of violence. Act includes racial and religious harassment, certain forms of protest and some anti-social behaviou.
Step 5: Article 8 (1) - Correspondance
Malicious Communications Act 1998
s.1 states it’s an offence to send another person a letter, electronic communication or article which conveys
- a message which is indecent or grossly offensive
- a threat
- information which is false and is known to be false by the sender
- the effect must be to cause distress to the recipient or any other person
This could be a form of cyber-bullying as the sender’s intention is to cause distress or anxiety
Step 5: Article 8 (1) - Correspondance
Regulation of Investigatory Powers Act 2000
Allows certain forms of surveillance by the Secretary of State where it is deemed necessary, for example in the interests of national security
Step 5: Article 8 (1) - Correspondance
Investigatory Powers Act 2016
Allows the security services a range of pwers including hacking and other forms of surveillance to protect public safety. It’s referred to by some as the ‘snoopers charter’ and a recent crowd-funded challenge made by Liberty has led to the High Court declaring some aspects of the Act incompatible with Article 8
Gov has been tasked with re-writing some of the Act
Step 6: Article 8 (2)
In accordance with law
- there must be a law or legal rule that allows for such an interference
Such a law must be clear and precise
Copland v UK: surveillance of a person’s work email was not justified as there was no law to base these actions upon
therefore, interfernce cannot be arbitrary but must be part of an open policy, and for example must be one which all employees have already been made aware of
Step 6: Article 8 (2)
What are the legitimate aims?
- national security - Gillan and Quinton v UK
- public safety or economic well-being - Peck v UK
- prevention of disorder or crime - Wood
- protection of health or morals - R v Brown
- protection of the rights and freedoms of others - Axel Springer v Germany
Step 6: Article 8 (2)
How do decide if the interference was justified?
to decide if the interview was justified it must be necessary in a democratic society
ECtHR will use the principles of ‘proportionality and the margin of appreciation’ to decide if the interfernce with the right is justified
Step 6: Article 8 (2)
What is meant by proportionality
the states interference is proportionate in that it has struck a fair balance between the rigjts of the individual and the rights of the community
Step 6: Article 8 (2)
What is meant by margin of appreciation
the amount of discretion that the ECtHR gives the state in their interpretation of the convention.
It realises that what’s tolerated in once state, may not be in another
wide margin: there’s no real consensus amoung the Council of Europe and so state’s aren’t obligated to protect/respect this right
narrow margin: there is a consensus amoung the Council of Europe and so state’s aren’t obligated to protect/respect this right
Step 6: Article 8 (2)
In many cases that reach the court…
In many cases that reach the courts there will be a violation of this right. This means the court’s decision will be based on whether the state’s interference is justified
Step 6: Article 8 (2)
Overlap with Article 10
There is often an overlap with Article 10 - freedom of expression. An individual will argue their Article 8 rights have been violated, say for example by a newspaper, who will in turn argue they have the right to print the story under Article 10. The court will then decide if the story is in the public’s interest
Step 6: Article 8 (2)
Article 8 is a negative right
Article 8 is a negative right (the state should respest the right and not interfere) however, it has been interpreted in a way that gives the state positive obligations to protect a person’s right to respect for family and private life and take steps to keep the law udner review
Step 6: Article 8 (2)
Decisions made byt he ECtHR have developed over the years using the ‘living instrument principle’
Sheffield and Horsham v UK: ECtHR recognised UK’s failure to update the law and recognised social acceptance of transsexualism and problem they encounter post-op
Lead to:
Gender Recognition Act 2004
Marriage (Same Sex Couples) Act 2013
