Article 8

Question 1

What is Article 8?

Answer 1

Right to Private and Family Life

Question 2

What does Article 8(1) say?

Answer 2

“Everyone has the right to respect for his”:
Private life
Family life
Home
Correspondence

Question 3

What kind of right is it?

Answer 3

A qualified right - can be taken away by state if sufficient reasons

Question 4

Can article 8 be used in private disputes? Use a case.

Answer 4

No, they cannot be used in private disputes.
Case of Campbell v MGN - newspapers serve as a public function

Question 5

Under the case of Pretty v UK, what does the scope of Article 8 include?

Answer 5

“physical and social identity,
gender identification,
name,
sexual orientation
and personal development”

Question 6

A: Physical and Social Identity - cases and what they stated

Answer 6

Botta
ECtHR did say that Article 8 includes the psychological and physical wellbeing as well as the development of a personality without outside interference

Question 7

B: Sex life and Gender - cases and important rules/statements made from them

Answer 7

Dudgeon

Bellinger

Question 8

C: Personal data - what does this include, use cases and rules from them

Answer 8

Includes DNA details and medical records

S&Marper - retaining someones DNA without charging them with a criminal offence is a breach of article 8

MS - health data is a ‘vital principle in the legal systems’

Gillick Competence for under 16’s discussing contraception with doctors was allowed in the case of Axon

Question 9

D: Names - what is said about names, use case

Answer 9

Names are central to identity

The case of Johansson showed that naming your child is a private matter unless the name could potentially cause ridicule or prejudice

Question 10

E: Reputation - what overlaps here, use cases and explain rule/statement

Answer 10

A.8 & A.10 overlap

Case of Sir Cliff Richard states we should look at what is ‘in’ and ‘of’ the public interest when balancing

Van Hannover - pictures of children took without consent - When balancing articles 8 and 10 the court should consider whether the photos/articles contribute to a debate of general public interest

PJS - states neither article has precedent over the other

Weller - family is included

Question 11

2: Family Life - definitions part 1

Answer 11

• Kroon v Netherlands 1995
  o biological and social definition
• Lebbink v Netherlands 2004
  o close family ties
• Marckx v Belgium 1979
  o grandchildren included
• Berrehab v Netherlands 1989
• continues after divorce

Question 12

Family life - definitions part 2

Answer 12

• Kamal v UK 2016
  o cohabiting couples
• Pini v Romania 2004
  o adoptive relationships
• X v Switzerland 2017
  o foster relationships
• Schalk and Kopf v Austia 2011
  - same sex relationships

Question 13

Some more cases on family life and what they state

Answer 13

Gaskin - adopted/foster kids and unmarried couples still count as ‘family’

Yousef - best interests of child are always before the parents - also seen in Johannsen

R(Agyarko & Ikuga) - deportation allowed as relationship was seen to be able to go on. Courts have wide margin of appreciation with deportation matters

Question 14

Does a home have to be owned by an individual or not?

Answer 14

No, the case of Khatun said it applies to owners and occupiers

Question 15

Can A.8 right to home be used in private matters?

Answer 15

No - McDonald v McDonald - private matter so couldn’t be used

Question 16

Rules and case on people who bring things like caravans onto land

Answer 16

A.8 right to home will be applicable if the person is being evicted from somewhere they can lawfully occupy (Connors)

If occupation of land is unlawful, such as a playing field, then A.8 will not apply - Price

Question 17

What was the case where the couple was denied a license to move back into their home house and what does the right of home extend to?

Answer 17

Couple was refused a license and was seen as a breach in the case of Gillow

Niemetz states that the definition of ‘home’ is wide and therefore extends to business premises

Question 18

4: Correspondence - what does this right mean?

Answer 18

It means that you have the right to communication without interception

Question 19

What did the case of Klass state

Answer 19

Secret surveillance isn’t a breach so long as it is necessary and used to promote public safety, or promote freedom of others

Question 20

Complete sentence and use case: Any interference must be ________

Answer 20

Any interference must be justified under article 8(2) and be in accordance with law

Investigatory Powers Act

Question 21

More cases for correspondence

Answer 21

Barbalescu - Right to correspondence and private life in the workplace

Copland - monitored phone calls, emails etc. of teacher that were not for purposes of her job

Halford - calls tracked after she lodged a complaint against her superior

Golder - includes those who are in prison

Question 22

What are the three things that if satisfied can result in a justified restriction of article 8

Answer 22

The limitation must be:
In accordance with law
In pursuit of a legitimate aim
Necessary in a democratic society

Question 23

It is in accordance with law - cases and what it means

Answer 23

Means any interference must be based on law that is clear, predictable and accessible by the claimant.

RIPA - Regulation of Investigatory Powers Act
Investigatory Powers Act

Question 24

In pursuit of a legitimate aim - what are the aims

Answer 24

National Security
Public Safety
Economic Wellbeing of the Country
Preventing crime or disorder
Protecting health and morals
Protecting rights and freedoms of others

Question 25

In pursuit of a legitimate aim - part 1 cases - NS, PS, EWotc

Answer 25

National Security:
Klass - terrorism
Smith and Grady - HAS to be a national security concern - discovering sexuality in the army was a breach

Public Safety:
Buckley - justified

Economic Wellbeing of the Country:
Gillow

Question 26

In pursuit of a legitimate aim - part 2 cases - PcoD, PHaM, PRaFoO

Answer 26

Preventing crime or disorder:
Malone - ECtHR stated that interception of communications was justified to prevent crime and disorder

Protecting Health and Morals:
Laskey
Dudgeon - Court stated that protection of morals could include safeguarding the moral standard of society

Protecting Rights and Freedoms of Others:
Chappell

Question 27

It is necessary in a democratic society - what must this be and what case did the court look at to consider what could be proportionate restriction?

Answer 27

This must be proportionate so it balances the rights of the individual against the rights of the community

Case of Handyside

Question 28

What questions does the Handyside test ask?

Answer 28

1. Is there a pressing social need for the restriction?
2. Does the restriction correspond to that need?
3. If so, is that restriction a proportionate response to that need?
4. Are the reasons given relevant and sufficient?

Question 29

What will courts use when deciding if a restriction is proportionate?

Answer 29

Margin of Appreciation

Question 30

What does margin of appreciation mean and explain wide and narrow with cases

Answer 30

Margin of appreciation is how much leeway the courts are given in their decision

Wide margin - more leeway, less strict
Evans
Klass

Narrow - less leeway for decision, stricter
Dudgeon