Article 8 - Evaluation Flashcards
AO1: Introduction
Article 8 is the right to respect for family and private life, including home and correspondence.
Qualified right - the need to strike a balance between the rights of the individual and the rights of the community, usually balanced with another right e.g. Article 10
Proportionality - ECtHR will decide whether the state’s interference was proportionate when striking the balance between the individual and the community
Margin of appreciation - the amount of discretion the ECtHR will give the state as they realise that different countries have different values, morals and tolerances, e.g. Discretion can be ‘wide’ or ‘narrow’ depending on the issue
‘Living Instrument’ Principle - the state has a positive obligation to review the law and change it if necessary, e.g. Sheffield and Horsham v UK – the state did not review the law regularly in relation to transgender individuals who had undergone gender reassignment
AO1: Article 8 (1)
Everyone has the right to respect for:
Family life - includes various types of family relationships e.g. children, grandchildren, adoptive and foster relationships, relationships after divorce, other relations with close family ties, married couples and co-habiting unmarried couples, also now including same-sex couples (Schalk v Austria)
The rights of a child will always be paramount and removing a child from a family needs to be proportionate: (Johansen v Norway)
Private life - includes physical and psychological integrity i.e. sex life, gender, reputation, name, photographic images and personal data. E.g. police searches (Gillan v UK), listening to phone conversations (Halford v UK), medical records (Axon v SoS Health), storage of DNA samples (S and Marper v UK)
Home - includes permanent homes, second homes, people who rent or own. Includes lawfully parked caravans but not illegally parked (Price v Leeds). Even includes your office or workplace (Niemetz v Germany)
Correspondence - includes telephone conversations, text, email, fax, letters, etc. The Investigatory Powers Act 2016 allows state hacking and surveillance for public safety (Snooper’s Charter)
AO1: Article 8 (2)
Any interference with Article 8 must be:
In accordance with the law - must be based on a law that is clear and predictable (statute or case law) e.g. Copland v UK where there was no law to justify surveillance of work emails
To meet a legitimate aim - in the interests of: national security; public safety; economic well-being of the country; prevention of disorder or crime (e.g. police searches); protection of health or morals; protection of the rights and freedoms of others
Necessary in a democratic society - proportionate and within the margin of appreciation
AO1: UK Law
Data Protection Act 1998 and GDPR protects personal data
Press intrusion has to be within the interests of justice
Protection from Harassment Act 1997
Malicious Communications Act 1998 e.g. cyber-bullying
Investigatory Powers Act - new powers for UK intelligence agencies and law enforcement to carry out targeted and bulk interception of data and communications. Requires ‘communication service providers’; government and others can view records without a warrant; police and intelligence agencies can hack to access data. EU compatible ruling in 2018 from HC means now accessing communications data can only be for the purposes of finding serious crimes and must first consult IPC (unless in an emergency)
Investigatory Powers Commissioner’s Office (IPCO) - reviews the use of investigatory powers
Investigatory Powers Tribunal (independent from government) - investigates if PA has acted unlawfully; considers complaints regarding conduct; can award compensation and quash a warrant of authorisation; can only investigate HRA claims if concerns an intelligence agency, the police etc.
AO1: UK Cases
Wood v Police - taking and retaining photos of protestors was a violation
R v Home Department - making sex offender notify the police of their address + travel for the rest of their life was disproportionate. This rule should be reviewed periodically
AB v SoS for Justice - refusing a pre-op transgender woman the right to move from a male prison to a female one was a violation
AO3: Qualified Right
Article 8 balances the rights of the individual with that of the community well as the ECtHR has to check that any state inference is both proportionate and within the margin of appreciation (P).
Furthermore, Article 8 places a positive obligation on the state to protect/respect this right and keep the law under review under the ‘living instrument’ principle (DP).
It is important to balance the two opposing rights e.g. the police want to photograph protestors but the protestors have the right not to be photographed and likewise the press want to print stories about celebrities but some celebrities want to keep their life private (Campbell v MGN): the ECtHR will have to balance these opposing rights as neither party has priority (WDP).
AO3: Family Life
The term ‘family’ has been given a very wide definition and under the ‘living instrument’ principles recognises that families take very diverse forms (P).
Before 2010, same sex couples were not covered by family life but Schalk v Austria changed and modernised this (DP).
Furthermore, the right is seen as important and the courts effectively protect it (especially if children are involved Johansen v Norway) and even a convicted rapist was entitled to a family life when he wasn’t deported (Nasri v France) (WDP).
However, having boyfriends in the UK didn’t stop the UK refusing the application of two women living in the UK illegally Agyarko v Ikuga v Home Department (VWDP).
AO3: Correspondence
Article 8 somewhat effectively balances the rights between individuals and the community in the way it deals with correspondence, indeed to access these items, the police and security services (GCHQ) must do so in accordance with the three requirements in Article 8(2) (P).
The Investigatory Powers Act 2016 allows hacking and surveillance to protect public safety, and these wide-ranging powers were held to be a violation of Article 8 by the High Court and has been described as a ‘Snooper’s Charter’ and many human rights groups such as Liberty (DP).
Furthermore, the Snowden Leaks revealed that GCHQ are monitoring millions of communication every day and sharing some with the USA, however, supporters of increased surveillance says it protects the public from potential terrorists (WDP).
AO3: Private Life
This term has been given a very wide definition and therefore Article 8 offers a lot of protection to an individual, making it effective (P).
Many of the UK and ECtHR cases protect this right and are quick to find that there has been a violation and Acts of Parliament such as the Data Protection Act and EU Regulations such as the GDPR protect personal data (DP).
However cases such as S and Marper v UK highlight that the UK could still go further to improve the protection of this right (DNA samples are held by the police of people who were never charged with an offence) (WDP).
