Article 8

Question 1

What is article 8?

Answer 1

The right to respect for family and private life

Question 2

What does article 8(1) state?

Answer 2

Everyone has the right to respect for his private life, his home and his correspondence

Question 3

What does article 8(2) state?

Answer 3

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

Question 4

How is article 8 a qualified right?

Answer 4

This right needs to strike a balance between the rights of the individual and the rights of the community. This means the state can limit these rights in accordance with the law and if it is to meet a legitimate aim.

Question 5

What is meant by proportionality?

Answer 5

Is the states interference proportionate in that it has struck fair balance between the rights of the community and the rights of the individual

Question 6

What is meant by ‘margin of appreciation’?

Answer 6

This is the amount of discretion that the ECtHR gives the state in their interpretation of the convention. It realises that what is tolerated in one state may not be in another.

Question 7

What is the ‘living instrument principle’?

Answer 7

Article 8 is a negative right, however, it gives the state positive obligations to protect a persons right and takes steps to keep the law under review.

Question 8

What is a negative right?

Answer 8

the state should respect and not interfere

Question 9

What is the case used for the ‘Living Instrument Principle’?

Answer 9

Sheffield & Horsham v UK: UK law did not recognise or allow a person who had undergone gender reassignment to change their birth certificate. There was no violation of article 8, however the UK were heavily criticised and the ECtHR thought the UK had a positive obligation to update the law.

Question 10

What four rights doe article 8(1) cover?

Answer 10

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

Question 11

What does in accordance with law mean?

Answer 11

Any interference with this right must be based on a law that is clear and predictable, Copland v UK 2007

Question 12

What is considered a legitimate aim?

Answer 12

-National security
-Public safety
-Economic well-being of the country
-Prevention of disorder or crime
-Protection of health or morals
-Protection of the rights and freedoms of others

Question 13

What has the ECtHR defined ‘family life’ as

Answer 13

Children, grandchildren, adoptive and foster relationships, relationships after divorce, other relations with close family ties, married couples and co-habiting unmarried couples, same sex couples

Question 14

What is the case of Johansen v Norway 1996

Answer 14

A baby was taken into care by the state who then decided to put the child up for adoption. Parental contact was allowed whilst the baby was in care, but this would stop when the baby was adopted. ECtHR decided there was a violation of Article 8 as terminating any chance of the baby and parents being reunited should only b done in exceptional circumstances.

Question 15

How does the ECtHR protect children?

Answer 15

The state is obliged to facilitate contact between parents and a child when it is in the interest of the child. The rights of the child will always be paramount.

Question 16

What is the ECtHR view on removal from the state for family life?

Answer 16

As long as they can continue their family life in their original country, they will be removed, Agyarko & Ikuga v Secretary of State for the Home Department. Only in exceptional circumstances would they be allowed to stay

Question 17

What is the case of Nasri v France 1996?

Answer 17

A convicted rapist who was deaf, unable to speak and illiterate was allowed o stay in France as that is where his family lived.

Question 18

How does Botta v Italy (1998) define private life?

Answer 18

‘a persons physical and psychological integrity for which respect is due to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings’

Question 19

Is the right to a private life the same as privacy?

Answer 19

No.

Question 20

What does a persons physical and psychological integrity include?

Answer 20

Sex life and gender, reputation, name, photographic images and personal data.

Question 21

Gillan & Quinton v UK (2010)

Answer 21

The police have extended powers under s.44 Terrorism Act 2000 to stop and search any person without reasonable suspicion. This power was used to stop and search people on their way to protest at an arms fair. Despite the wide margin of appreciation in issues of national security, the ECtHR believed this was a disproportionate use of the power

Question 22

Halford v UK (1997)

Answer 22

The police were listening to the telephone conversation 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 of article 8

Question 23

Rules on medical data

Answer 23

Medical data is considered confidential for both adults and children who are considered Gillick competent

Question 24

Axon v Secretary of State for Health (2006)

Answer 24

The claimant wanted the court to make a declaration that doctors could not keep medical records of children under 16 confidential from the parent. The courts refused and said the medical treatment of children is confidential if the child is gillick competent

Question 25

S and Marper v UK (2009)

Answer 25

The applicants had their dna taken at the police station when they were arrested on suspicion of committing a crime. They were found not guilty, but their dna was still retained on the national police database. There was a procedure for getting the dna removed from the database, but this was at the discretion of the police. The ECtHR considered this to be disproportionate as it did not balance the rights of the individual against the needs of the community.

Question 26

What is the UK law on data protection?

Answer 26

There is no specific privacy law in the UK. Confidential documents are covered by the tort of breach of confidence and the Data Protection Act 1998 controls the use of personal data by businesses and the state

Question 27

When can press intrusion be justified?

Answer 27

If it is 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. Decisions to grant injunctions to respect a persons right to a private life will be decided on the facts of each individual case.

Question 28

Campbell v MGN Ltd (2004)

Answer 28

Naomi Campbell claimed that the newspapers should not have printed a photograph of her attending a narcotics anonymous meeting including details of the treatment she was having for drug addiction. The HOL agreed that this information was private.

Question 29

Murray v Express Newspaper PLC (2008)

Answer 29

JK Rowling’s infant son was photographed in the street and the picture was published in a national magazine. It was held that the claimant’s right to privacy outweighed the magazines right to publish. The children of people who were not famous should expect not to be photographed without their knowledge or consent.

Question 30

What is the Protection from Harassment Act 1997?

Answer 30

It is a criminal offence to pursue a course of conduct amounting to harassment. It’s also a crime when the conduct puts the victim in fear of violence. It includes racial and religious harassment, certain forms of protest and some anti-social behaviour.

Question 31

What is the Malicious Communications Act 1998?

Answer 31

This act covers the sending of letters, electronic communications or articles of any description which convey a grossly offensive message, or threat, or information which is false (and the sender knows it is false). This could be a form of cyber-bullying as the senders intention is to cause distress or anxiety

Question 32

Examples of family and private life

Answer 32

-Wood v Commissioner of Police of the Metropolis (2009) : violation of article 8
-R v Chief Constable of Greater Manchester Police & ors (2014) : disproportionate under article 8

Question 33

What does ‘home’ include?

Answer 33

Where you permanently live or where you live sometimes. The law treats owners and occupiers of property equally (Khatun v UK 1998)

Question 34

Connors v UK (2004)

Answer 34

The ECtHR accepted that land where caravans were parked lawfully was the person’s home whereas caravans parked on a playing field were not (Price v Leeds City Council 2005)

Question 35

Niemietz v Germany 1993

Answer 35

Police searched the offices of a lawyer. The ECtHR said that ‘home’ could include the workplace. The search was also a violation of the lawyers ‘private life’.

Question 36

What does correspondence include?

Answer 36

Telephone conversations, text messages, emails, fax, letters etc. it the state wants to interfere with any of these things, they require justification under article 8 (2). This also extends to interference with correspondence of people held in custody

Question 37

What is the Investigatory Powers Act 2016?

Answer 37

Allows the security services a range of powers including hacking and other forms of surveillance to protect public safety.