Article 8 Flashcards
What type of right is article 8?
A qualified right - meaning it often has to be balances against other rights (Mostly article 10 freedom of expression in this case)
What is article 8 the right to?
Private and family life
What does article 8(1) say?
Everyone has the right to respect for his private life, family life, home and correspondence.
What does article 8(2) say?
This right cannot be limited unless it is under the following circumstances:
National security
public safety or economic well-being of the country.
Prevention of disorder of crime
Protection of health or morals
Protection of rights and freedoms of others
When can A8 not be used?
Article 8 cannot be used in private disputes. It can only be used in disputes involving a public body. However in the case of Campbell v MGN, Naomi Campbell won her case against the News paper even though they are not a public body as they serve a public function of sorts.
1) Private life - What does it include?
Pretty v UK:
a) Physical and social identity
b)Sex life and gender
c)Personal data
d)Names
e)Reputation
1a) Physical and social identity
Botta v Italy - Disables person could not access beach due to lack of ramp access. Ruled no breach of A8 but determined that A8 includes the psychological and physical well-being, as well as the development of a personality without interference.
Bensaid v UK - Mental health is a crucial part of private life.
1b) Sex Life and Gender
Goodwin v UK - Any restriction on the rights of transgender people are a violation of their A8 rights.
Bellinger v Bellinger - UK’s failure to recognise new gender to allow claimant to get married was a breach of article 8.
Dudgeon v UK - S.11 Criminal amendments act 1885 which criminalised male homosexual acts was a breach of the ECHR. This law has been overturned in England and Wales but still stood in Norther Ireland where Mr Dudgeon lived.
1c) Personal data
This includes DNA and medical reports:
S and Marper v UK: Indefinite retention of DNA samples of people not convicted of an offence is an A8 breach.
Photos and videos are also included:
Wood v Commissioner of Police: Police took and retained photos of protestors. This action was unjustified and an invasion of A8.
Data is protected in law in the UK by the data protection act 1998 and this control how information is used. Adults and children are protected by this providing they are “Gillick competent” meaning they understand their decisions and what they will mean.
1d) Names
Names are central to the idea of identity.
Johansson v Finland: Parents were denied the right to name their child “Axl Mick” in Finland. This was a breach of A8 as naming a child is a private family matter. This changes if the name is likely to lead the child into prejudice.
1e) Reputation
Sir Cliff Richard v BBC:
Police were investigating historic reported sex offences by sir Cliff. The BBC met with the police before broadcasting it on television. No charges were ever brought against Sir Cliff and the police paid him damages in the court settlement. Sir Cliff took the BBC to court where they had to pay him compensation.
“In the public interest” vs “Of interest to the public”:
In the public interest - Protected by A10
Of interest to the public - Invasion of privacy - breach of A8.
2) Family life - Definitions
This is the right to enjoy family relationships without state interference.
Kroon v Netherlands - Legal definitions of a family must not override what is the biological and social family situation.
Marckx v Belgium - Includes children and grandchildren
Berrehab v Netherlands - Family continues after divorce.
Kamal v UK - Cohabiting heterosexual couples are included.
Pini v Romania- Adoptive relationships are included
X v Switzerland - Foster relationships are included
Schalk and Kopf v Austria - Same sex relationships are included as family
3) Home
This is the right to enjoy you’re home peacefully without interference.
A home does not have to be owned by an individual : Khatun v UK - Applies to owners and occupiers.
McDonald v McDonald - Landlord defaulted on mortgage payments. Tenant tried to argue eviction was a breach of A8. Held the article could not be enforced here as it was two private individuals.
Niemetz v Germany - Definition of home is wide and it includes business premises to help protect from interference by the state.
4)Correspondence
This involves the right to uninterrupted and uncensored communication with others.
Any interference with communication must be justified under article 8(2) and be in accordance with the law :
Investigatory powers act
