Article 8: Privacy Flashcards
Article 8, as a whole, protects 4 separate rights:
- Respect for Private life
- Respect for Family life
- Respect for the home
- Respect for Correspondence
Is Article 8 a Qualified Right?
Yes
The Proportionality test is applied:
- prescribed by law
- pursues a legitimate aim
- necessary in a democratic society
Obligations
Article 8 imposes negative and positive obligations
Defining feature:
far more positive obligations under Article 8 than any other Article
Privacy 1: Searches and Surveillance by State Agents
Many cases in this area revolve around the first limb of the proportionality test (whether the search/surveillance was permitted and regulated by provisions of law)
Khan v. UK*
the police had installed covert listening devices in the applicant’s home
no statutory system in place to regulate the use of listening devices, the
law simply was not there
Liberty v. UK
in addition, there must be adequate procedural safeguards to protect
privacy rights and being accessible to the public at large
Malone v. UK
Postal, telephone or electronic systems lacking sufficient safeguards
against abuse are not valid.
- does not merely refer to the existence of law, but also to the quality of
the law // can be no arbitrary interferences
- has to be open to the scrutiny of the public at large
Privacy 2: Photographs and Recordings
Von Hannover v. Germany
ECtHR takes attitude that person’s image is a chief attribute of
personality, because it “reveals the person’s unique characteristics and
distinguishes the person from his or her peers”
State distribution of person’s photo is violation, unless proportionality
CCTV not automatically violation, but subsequent publication might be
Peck v. UK*
applicant's suicide attempt recorded on CCTV and given to TV station
could not be considered necessary in a democratic society
Gorlov v. Russia
continuous surveillance via CCTV must be justified under
proportionality test
Law must be sufficiently clear, precise and detailed
e.g. when this could be done, the duration, the applicable procedures
virtually no safeguards in this instance
Privacy 3: Protection from Private Parties
In certain circumstances - to protect against privacy intrusions by other private individuals
Ribalda v. Spain - “the robbing supermarket cashiers”
state may be under a positive obligation to provide redress for unjustified
surveillance conducted by private individuals
no violation in this case as degree of intrusion was limited (only 10 days) +
there was weighty justification
Einarsson v. Iceland - “famous applicant, alleged rapist Instagram post”
violation of Article 8
the veracity of an allegation of rape could be proven, SC failed to
sufficiently explain how “rapist bastard” could be a value judgment
Khadija Ismayilova v. Azerbaijan*
secret filming and dissemination of intimate videos of journalist in her
home = grave affront to applicant’s dignity and privacy
State had positive obligation to lead an effective criminal investigation to
protect the applicant’s private life
Serious inadequacies in this instance = violation found
Autonomy 1: Bodily Integrity
State must refrain from, and take action to prevent others, harming someone’s physical or psychological integrity (when they know or ought to have known)
Stoicescu v. Romania*
State failed to protect applicant from the danger known to be posed by
wild dog attacks in Bucharest.
Shows the wide scope of Article 8
A v. Croatia
State failed to take effective measures to protect the applicant against
her abusive husband
X and Y v. The Netherlands
State obliged to have effective domestic laws to prevent and punish
private parties violating the physical or psychological integrity of others
Dutch criminal code required the victim to personally make complaints
Applicants' daughter was a 16 year disabled girl who had been sexually
assaulted in a privately run care facility who could not make the
complaint herself - even though her parents wanted to = violation
Autonomy 2: Forcible Medical Treatment
Forcible medical treatments usually = Article 8 violation
Y.F. v. Turkey*
Police officers forced the applicant to undergo a gynaecological
examination, to prove she had not been sexually abused whilst in
custody.
Violation of Art. 8.
Storck v. Germany
State was complicit in the applicant being involuntarily held and treated in
private psychiatric hospital.
Violation of Art. 8.
Autonomy 3: Termination of Pregnancy
A, B and C v. Ireland*
A. and B. claimed that the prohibition in Irish law of abortion on general
health grounds violated Art. 8.
ECHR = proportionality test –> interference justified as it balance right to
privacy with the prevailing moral views in Ireland at the time (i.e. margin
of appreciation)
C. = lack of implementing legislation and confusion that this caused in
law.
ECtHR = State under positive obligation to provide effective and
accessible procedure. This had not been done by Ireland
Violation
Tysiac v. Poland
legal provisions must clarifying pregnant person’s position vis a vis their
ability to attain an abortion - not limited of possibility to obtain one,
guarantee that the person’s views will be heard + timely procedures
Autonomy 4: Restrictions on Assisted Dying
Pretty v. United Kingdom *
Applicant was motor neuron disease sufferer who wished to end her life
but could not do so under English law.
The court said that at a level of principal, Article 8 would include the right
to end her life as a private matter, guarantees a level of self-determination
BUT – any interference was justified - the law prohibiting assisted suicide
was designed to safe guard the weak and vulnerable
Large margin of appreciation for the state in regulating this area.
Autonomy 5: Assisted Reproduction
Restrictions and control of use of reproductive technologies is an interference with Article 8 rights, which must be justified.
However, state enjoys a wide margin of appreciation in terms of how to regulate these matters given the lack of widespread European consensus.
S.H. v. Austria
restrictions on methods of artificial procreation under Austrian law
infringed Art. 8 rights of applicants, but state had wide discretion to
control and regulate such procedures.
Concluding Points on Privacy:
1: Common Thread =
Restrictions on access to medical procedures may interfere with Article 8
rights, but those restrictions will usually be justified as state enjoys a wide
margin of appreciation.
- Raises the question as to whether the protections provided by Article 8 are illusory. If your rights can be restricted so easily, do they have any substance?
- Raises the question as to whether it is appropriate for the Court to give such a generous margin of appreciation in these areas, rather than fixing more definitive standards of rights protection which should be followed by states.
Self-Identity 1: Personal Identity and Development
State must avoid taking actions or implementing laws which inhibit or punish development unless good justification exists.
State must take positive steps to ensure individuals can live out their chosen identity.
Gaskin v. UK
applicant had spent majority of his life in foster care
local authority refused to disclose information which it had on file
Violation
BUT
Odievre v. France
Applicant was refused access to information regarding identity of
biological family at request of mother.
Infringement of Art. 8 but justified in circumstances = wide margin of
appreciation, supposedly legitimate aim of preventing late term abortions
and infanticide
Keita v. Hungary *
State under positive obligation to ensure:
individual can effectively enjoy his or her private life
realise his or her own personal development
form and maintain relationships with other human beings
Applicant was stateless person living in Hungary who could not
regularise legal situation for 14 years, with negative repercussions for
ability to live normal life (e.g. healthcare, employment)
Violation
Limits to these principles though: Glaisen v. Switzerland
disabled man art house cinema
Article 8 only applicable to prevent breaches to personal development,
establishing relationships with other human beings
+ lack of access to this particular cinema could not be said to have
infringed on the applicant’s right to respect for his private life
applicant had access to other cinemas in the region
Self-Identity 2: Sexual Identity and Practices
Criminalisation or penalisation of a person for sexual orientation may amount to a violation of Art. 8
Norris v. Ireland *
Court said there would need to be particular weighty considerations
before the state could interfere with such a private situation
The Court did not think Ireland was putting any forward in this case
Ireland said that they were doing it to protect vulnerable groups + protect
the morality of society
Smith and Grady v. United Kingdom
Prohibited homosexuals from being in the army in absolutely all
circumstances
ADT v. UK
gay man prosecuted for gross indecency after engaging in sex with 4
other men
Violation of privacy
BUT some restrictions on sexual practices have been upheld by the Court:
Laskey, Jaggard and Brown v. United Kingdom *
violent sado-masochistic sexual activities
European leg of R v. Brown
Stubing v. Germany
(prohibition on incest)
Court gave Germany a wide margin of appreciation
Restriction was justified in the circumstances
Self-Identity 3: Gender Identity
Rees v. United Kingdom
Held that no obligation under Art. 8 for state to operate system for
registration of births to acknowledge gender identity.
BUT B v. France
countries have a margin of appreciation
in this case, French law could have permitted the applicant to change
their registered gender without significant difficulties
Violation = there was not a fair balance between general interest and
rights of the individual
The position changed, by virtue of the “living instrument” doctrine, in Goodwin v. United Kingdom *
Art. 8 interpreted as imposing positive obligation on State to provide
legal recognition of gender reassignment.
Court view = trend towards the recognition and acceptance of
transgender people had emerged at International level - based on what
tho???
YY v. Turkey
legal restriction on the circumstances in which a person could access
gender reassignment procedure was an interference with Art. 8 and had
to be justified under proportionality test.
