Article 8 Flashcards
What is Article 8?
Right to respect for family & private life
What does Article 8(1) say?
Everyone has the right to respect for their private and family life, their home and correspondance
Is Article 8 a qualified right?
Yes
What does a qualified right mean?
It cannot be limited
What are the 4 protected interests of article 8?
- Private Life
- Family Life
- Home
- Correspondance
What is the ‘Living Instrument Principle’?
Article 8 is a negative right, but has always been interpreted to give the state positive obligations to protect a person’s right and take steps to keep the right under review. The meaning is still expanding.
What does private life include?
Sex life, personal data, reputation etc..
Private life cases:
- Peck v UK
- Pretty v UK
What is the Gillick test?
If the child has enough intelligence, competence and understanding to be truly informed about their treatment they are conspired Gillick competent
Name restrictions under private life
If a name negatively impacts a child in the future, it has the right to be denied. Not allowed obscenities, numerals or misleading titles
Are there any privacy laws in the UK?
No
How are confidential documents covered in private life?
Tort of breach of confidence and the Data Protection Act 1998
What does the Data Protection Act 1998 control?
Use of personal data by businesses and the state
Is Press intrusion justifiable?
Only in the interest of justice
What to the courts have to balance for press intrusion?
Freedom of Press with the Right of privacy
Do Article 8 and 10 have priority over each other?
No
How are injunctions granted in cases of press intrusion?
On the facts of each individual case
Press Intrusion key case(s)
- Campbell v MGN Ltd (2004)
- Murray v Express Newspapers PLC (2008)
What does the Protection from Harassment Act 1997 say?
It is a crime to pursue harassment or put the victim in a fear of violence (assault)
What does the Harassment Act 1997 have to remedy crimes?
Criminal sanctions and civil remedies (injunctions and damages) may be available
How did the ECtHR define Family Life to include?
- Adoptive + foster relationships
- Children
- Married couples
- Cohabiting unmarried couples
How does the ECtHR protect children?
Proportionality due to a wide margin of appreciation
What is the state obliged to facilitate with children in family life?
Contact between parents and their children when in the interest of the child
Will the state allow a person to stay in the UK for family life?
Only in exceptional circumstances i.e insurmountable obstacles in the way
Key case for a person to stay in the Uk for family life
- Agyarko and Ikuga v Secretary of State for the Home Department (2015)
Why was a convicted rapist not deported and the case
Nasri v France (1996) - Because he was deaf, unable to speak an illiterate. He was allowed to stay in France as that is where his family (parents and siblings) lived.
What does the right to home state?
Right to enjoy your home peacefully whether you own your house or not
Does the state have a right to provide housing?
No but there are exceptions for some people such as the severely disabled
What does home life include?
Where you permantly or sometimes life
What is the case involving caravans in home life?
Conners v UK (2004)
What did the ECtHR accept in Conners v UK (2004) and an opposing case
ECtHR accepted caravans as homes but only were lawfully parked. Price v Leeds City Council (2005), parking on playing fields are not lawful.
What case classed the workplace as ‘home’?
Niemitz v Germany (1943)
What does the term of Correspondance include?
Texts, emails ect..
What act allows security services to survey?
Investigatory Powers Act 2016
What does the Investigatory Powers Act 2016 allow?
Security services to undertake surveillance to protect public safely.
What right does correspondance give?
Right to live your life privately with correspondance, without government interference
What does correspondance cover with a supporting case?
Forms of communications and interferences
Barbulescu v Romania (2017)
Article 8(2) - what are the 3 criteria need to restrict Article 8?
- In accordance with the law.
- Legitimate Aims.
- Necessary in a Democratic Society.
Article 8(2) - What test lies with the accordance with the law?
Sunday Times Test
Article 8(2) - What case lies with the accoradance with the law?
Sunday times v UK (1979)
Article 8(2) - What are the 5 legitimate aims?
- National security
- Public safety and economic well being of country
- Prevention of security of crime
- Health of morals
- Rights and freedoms of others
Article 8(2) - what does necessary in a democratic society state?
There is a principle of proportionality. If measures taken answers a pressing social need and is proportionate to legitimate aims.
Article 8(2) - Case included in Necessary in a Democratic Society
Observer and Guardian v UK
What does Article 8(2) roughly say?
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 the economic well being of the country, for the prevention of crime, for the protection of health or moral, or for the protection of the rights and freedoms of others.
