Article 8 Flashcards
What is stated in Article 8.1?
Everyone has the right to respect for their private and family life, their home and their correspondence
What are the limitations stated in Article 8.2?
1) In accordance with the law
2) If it is necessary and proportionate
3)For one or more of the legitimate aims:
- The interests of national security
- The interests of public safety or the economic well-being of the country
- The prevention of disorder or crime
- The protection of health or morals
- The protection of the rights and freedoms of others
How can it be shown that an interference is ‘necessary in a democratic society’?
If the interference corresponds to a pressing social need and is proportionate to the legitimate aim pursued
What makes an interference proportional?
1) The objective of the legislation is sufficiently important to justify interfering with someone’s rights
2) The measure is sufficiently and rationally connected with the objective
3) It is not arbitrary, unfair or based on irrational considerations
4) The limitation must impair the right as little as possible
5) The interference must not be so severe that it outweighs the objective
How is everyone defined?
Klass v Germany - businesses are included in this definition as well as individuals
How is respect defined?
The state must take positive steps to keep the law under review and to protect these rights - this includes the rights of transsexuals as in Sheffield and Horsham v UK
How is private life defined?
The physical and psychological integrity of a person, which includes their sex life and gender, personal data, reputation, name and photos
Which case shows that a person’s private life includes being at work?
Niemietz v Germany
Which case shows that medical records and data are included in the definition of a private life?
MS v Sweden
How is family life defined?
The right to enjoy family relationships without state interference, this includes the relationship between children and foster parents, as in Gaskin v UK
Which case showed that the rights of children are paramount?
Yousef v Netherlands
How is the right to home defined?
The right to enjoy your existing home life peacefully, unmolested by the state without a good reason. This is not a right to have a house (McDonald v McDonald)
How is correspondence defined?
It covers all forms of communication
Which case shows that secret surveillance is only tolerable if necessary for protecting a democratic society?
Klass v Germany
Who is the right to private life available to?
The right to private life is not available in private disputes, only in cases involving a public authority. A judge deciding on a court case can be considered to involve a public authority. Therefore, once a claim is brought in court, the ECHR must be taken into consideration as a decision that is incompatible with the ECHR cannot be made.
When could a case be brought against a private company?
In Campbell v MGN, Naomi Campbell was able to bring a claim against Mirror Group Newspaper even though they were a private company, because the court proceedings were deemed to be a public authority, legitimising her case.
How is the tort of misuse of private information defined?
It focuses on ‘the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people’
Which case shows that the touching of the body can be included in private life?
Wainwright v Home Office
Which case ruled that sexual infidelity is not a matter of public interest, in a legal sense?
PJS v News Group Newspaper
What is libel?
A permanent form of defamation, including broadcasting and social media
What is slander?
A transient form of defamation, including speech and gestures
What must the claimant prove in a case of defamation?
The claimant must show that the conduct was defamatory which means that an ordinary person would think worse of them as a result. The conduct must also identify or directly refer to them and must be published to a third-party.
What result does the Defamation Act 2013 require the claimant to show?
They must show that the conduct caused, or is likely to cause them, serious harm. This is usually in a financial form, particularly for businesses. There are two exceptions to this: if the conduct alleges that the claimant has committed a criminal offence punishable by imprisonment (such as calling them a thief) or if the conduct is calculated to disparage their profession (such as saying a doctor amputates the wrong limb).
What defence is set out in s2 Defamation Act 2013?
Truth
What defence is set out in s3 Defamation Act 2013?
Honest opinion
What defence is set out in s4 Defamation Act 2013?
Publication on a matter of public interest (this can be evidenced through they attempting to verify the truthfulness of the information or giving the claimant an opportunity to reply or comment)
What is absolute privilege in defamation?
A defence is available if there are clear public policies ensuring freedom of speech, such as for statements made during judicial or parliamentary proceedings
Wat is qualified privilege in defamation?
There is a defence available if the publication is any fair and accurate statement, but this defence can be defeated if there is any evidence of malice
Which act covers harassment or conduct that puts the victim in fear of violence?
Protection from Harassment Act 1997
Which act makes it an offence to send someone a form of communication that is threatening, indecent or information that is false?
Malicious Communications Act 1988
Which act controls how information is used by organisations?
The Data Protection Act 1998
Which case involved the use of covertly taken photos by a large organisation and was in contention with the DPA 1998?
Murray v Big Pictures Ltd. - the defendant took and published photos of JK Rowling’s child
Which act allows organisations to retain individuals’ data, with the aim of combatting crime?
The Investigatory Powers Act 2016
Which case involves the use of The Investigatory Powers Act 2016?
Wood v Commissioner of Police for the Metropolis - the police took and retained photos of a person involved in arms trade as he was leaving a company meeting. The police failed to justify the proportionality of this interference and it amounted to a violation of Article 8.
Why is the Investigatory Powers Act 2016 often in contention with Article 8?
Its powers are too wide-reaching and indiscriminate.
