Article 8 - right to family and private life

Question 1

article 8(1)

Answer 1

the right to respect private and family life, his home and correspondence

Question 2

private

article 8(1)

Answer 2

• physical and psychological integrity of a person
• sex life and gender
• personal data
• reputation
• names
• photos
• office documents
• listening to personal conversations (personal data)

Question 3

private

article 8(1) - private

Answer 3

• personal info (data) , identity (sexuality , gender)
• r v pretty - set out the scope and emphases the autonomy and dignity as what to consider

Question 4

physical and psychological integrity of a person

article 8(1) - private

Answer 4

• Wainwright v home office
• There was strip search by prison officers of mrs wainwright and her son during a visit to a prison
• Was a violation - not proportional

Question 5

sex life and gender

article 8(1) - private

Answer 5

• Sheffield and horsham v uk (1999)
• The government refused to recognise the new gender of people who had undergone gender reassignment surgery
• No violation as fell in the margin of appreciation, now has changed
• Vallianatos v greece (2013)
• Allowed homosexual couples to get civil partner but said no to heterosexual couples
• Violation
• Dudgeon v UK (1981)
• Criminal law amendment act 1885 criminalised homosexual men less favourably
• Violation
• AB v secretary of state for justice
• Claimant asked for a judicial review of the decision to keep her in a male prison
• Had gender dysphoria
• Wanted surgery but couldn’t have it until lived a number of years as a women in women prison, which she obvs couldn’t do
• Violation

Question 6

personal data

article 8(1) - private

Answer 6

• Axon v secretary of state for health (2006)
• Declared that a doctor was under no obligation to keep confidential advice and treatment proposed to someone under 16, in respect of contraception, STI and abortion from parents as it was part of their private life
• No violation
• Niemietz v UK (1998)
• Police searched lawyers house and work to find information about a suspect
• Violation - private life also include work life
• MS v sweden
• Stated respecting the confidentiality of health data is a vital principle in the legal system of all contracting parties to the convention

Question 7

reputation

article 8(1) - private

Answer 7

• PJS v News group newspapers
• Applied to the court for an induction to prevent publication of the fact, in 2011, he had a three way sexual encounter
• Protection of rights

Question 8

names

article 8(1) - private

Answer 8

• Johansson v finland (2002)
• Wanted to name their kid Axl Mick but finland refused
• Court found there was a breach to their private life and decided there would be no prejudice against in later life

Question 9

photos

article 8(1) - private

Answer 9

• Campbell v MGN ltd
• Was photographed coming out of a narcotics anonymous meeting
• Was a breach
• Wood v commissioner of police for the metropolis
• Taking and retention of photographs by the police of a person connected to a groups opposed in arms trade
  violation

Question 10

office documents

article 8(1) - private

Question 11

listening to personal conversation (personal data)

article 8(1) - private

Answer 11

• Halford v uk (1997)
• Assistant chief constable and her telephone calls were intercepted by police officers gaining information for a sex discrimination claim she was pursuing
• Breach of rights

Question 12

family

article 8(1) - family

Answer 12

• marriage , records , live together
• every decision is in the best interest of the child
• the right to enjoy family relationships without interference from the state
• it covers a huge number of areas

Question 13

family includes

article 8(1) - family

Answer 13

• Right to live with your family
• Agyarko and Ikuga v secretary state for the home department - Two immigrants who were being deported
• And said the court was taking away the right to live with their family
• No violation
• Johannesen v Norway - Child taken away from parent by social services
• No violation as proportional
• Right to make contact with them
• Marriages
• Relationship between an unmarried
• Relationship between adopted child and adopted parent
• Gaskin v UK - Was refused access to old adoption records
• Was a breach
• Relationship between foster child and foster parent
• Care proceedings

Question 14

home

article 8(1) - home

Answer 14

• Mcdonald v mcdonald
• Parents bought a house for her and had mortgage plan
• Family went to debt and mortgage company tried to evict
• No violation
• A right to enjoy your existing home peacefully
• Khatun v UK
• Suffered pollution in the area and house was covered in dust
• Couldn’t enjoy house peacefully
• Violation
• Not a right to a home
• Public authorities shouldnt stop from entering your home or living there without good reason
• Public authorities shouldnt enter without permission
• Doesn’t matter whether you own the home or not but does matter whether you are authorised to be there (travellers)
• Price v leeds county council
• Travellers who were about to be evicted
• Tried to say the caravan was a home and that it should be protected
• No violation

Question 15

correspondence

article 8(1) - correspondance

Answer 15

• messages , emails , letter and phone calls
• Bărbulescu v românia
• Used work yahoo work account to send personal messages
• Work dismissed him for this
• Was a violation - disproportionate restriction from employers
• This means the right to uninterrupted and uncensored communications with others
• E.G phone calls, letters , texts and emails
• In some circumstances e.g public safety, public authority may interfere with the right
• Investigation power act 2016 - legalisles methods of snooping and hacking by the security services
• Klass v germany
• The powers of the lsecret surveillance of citizens were tolerable under the ECHR
• Only in so far strictly necessary for safeguarding in the democratic institutions
• The right still exists at the workplace (even if the employer has reduced the right to private correspondence) - the rights of employees must be balanced

Question 16

Proportional interference

Answer 16

the goal of the interference has to be sufficiently important goal, has to be connected to the aim and restrict it in a minimal way as possible

Question 17

8(2) - the restriction

Answer 17

there shall be no such interference by a public authority with the exercise of his rights expect such as accordance with the law and is necessary (proportional) in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

Question 18

regulation of investigatory powers act 2000

restrictions - regulation of investigatory powers act 2000

Answer 18

• regulates interception of communications by state bodies

Question 19

S.1(1)

restrictions - regulation of investigatory powers act 2000

Answer 19

• it is an offence for a person without authority to intercept communcations from public , postal or telecommunications systems without authority

Question 20

S.1(2)

restrictions - regulation of investigatory powers act 2000

Answer 20

• it is an offence for a person without authority to intercept communications from private , postal and telecommunications systems

Question 21

S.5

restrictions - regulation of investigatory powers act 2000

Answer 21

• this gives lawful authority to the interception of communications if a warrant is issued by secretary of state
• S5(2) - only if necessary and proportionate
• S.6 - only if the application for the warrant is made by a person listed
• S.6(2) - such as the director general of secruity service

Question 22

S32(2)

restrictions - regulation of investigatory powers act 2000

Answer 22

• allows the use of intrusive surveillance if the sec of state considers it neccesary (S32(3))
• it must be exercised proportionally
• S32(3) - an authorisation is necessary on grounds of national secruity, preventing serious crome or in the interest of the economc wellbeing in of UK

Question 23

investigatory powers act 2016

restrictions - investigatory powers act 2016

Answer 23

• legalises methods of ‘snooping’ and hacking by security services in the interest of national secruity

Question 24

A8(2)

investigatory powers act 2016

Answer 24

• sets up a framework for protecting against the abuse of the wide powers granted to secruity services
• it includes;
• combining the powers avaiable to law enforcement/secruity/intelligence agencies to obtain communications data
• introducing ‘double lock’ for interception warrants so that they cant come into force until they have been approved by a judge
• creating investigatory powers commissioner to oversee how these powers are used
• halford v UK - her private calls were intercepted by her employer, this is a breach as was not neccesary - just snooping

Question 25

breach of confidence

restrictions - breach of confidence

Answer 25

• infomation must be obtained in a way that gives rise to a duty of confidence
• must have the quality of confidence
• if unathorised could lead to the claimant suffering a detriment
• defences toa breach of confidence include if the infomation is already in the public domain or it was not confidential or it is in the publics best interest
• focus on balancing A8 v A10
• Prince of wales v associated newspapers - the newspaper secrety obtained and published extracts from prince charles diaries , was a breach
• douglas v hello - published unauthorised photos from a cleb wedding , already planned for wedding to go public , no breach

Question 26

Official Secrets Act 1989

restricition

Answer 26

• Some public servants are covered by a legal duty to NOT disclose sensitive information -
• security/intelligence workers (S.1),
• defence (s.2),
• international relations (s.3) and
• crime/special investigations (s.4).
• This means their A10 right to expression will be restricted but the A8 right upheld as they can’t be forced to tell about it (protecting private life)

Question 27

protection from harrasment act 1997

protections

Answer 27

• act covers a range including stalking , harrasment due to race or religion
• some types of anti social behaviour

Question 28

scope of private life

evaluation

Answer 28

• Pretty v UK - sets out physical and social identity, gender identification, name and sexual orientation
• It is not capable of a exhaustive definition
• No general right to privacy but article 8 protects some parts
• Case by case law
• Although the scope of the case is clearly intended to open up A8 to the broadest range of situations, it leads to uncertainties in the law
• Harder to define accurately
• And harder for the ECtHR to protect as it is so broad and impossible to protect everything

Question 29

celebrities and private life

evaluation

Answer 29

• Helps those who are vulnerable to this such as celebrities
• Campbell v MGN , Weller v Associated newspapers , Cliff Richard v BBC - all these cases have strengthened the rights to privacy
• The print media would argue that this creates a ‘chilling effect’ around freedom of expression, which may make newspapers less willing to engage in investigative journalism
• A gain under article 8 can be a loss in article 10
• The issue of proportionality and balancing competing competing rights demonstrated that human rights law is an area where simple answers are not easy to find

Question 30

family life

evaulation

Answer 30

• An extremely broad definition
• ‘Family’ has been interpreted in a flexible way which has changed to stay in touch with societal changes
• The idea of family is not simply based around the traditional arrangement of marriage but on ‘biological and social responsibility’ - Kroon v netherlands
• The idea that family include grandparents, adoptive children, foster relationships cohabitating couples and same sex relationships
• It has also been held to cover ongoing ties which carry on after divorce - Berrehab v netherlands
• ECtHR has said what constitutes a family depends on close family ties and is a matter of fact and degree - Lebbink v Netherlands
• The court is a living instrument

Question 31

the environment

evaluations

Answer 31

• Kryatakos v Greece - “neither article 8 nor any of the other articles of the convention are specifically designed to provide general protection of the environment as such”
• Such rights are regarded as ‘third generation rights’ - however in recent years there has been some movement by the ECtHR to cover such issues using the convention
• There are cases where the governments concerned have failed to properly enforce or regulate the law - Lopez Ostra v Spain
• There has been a casual link between pollution and the effect on the individual
• The ECtHR is reluctant to develop this aspect to far
• hatton v uk - a case about increasing light and noise pollution from heathrow airport , the court was reluctant to attach any special status to environmental human rights

Question 32

technology - surveillance

evaluation

Answer 32

• A highly continuous area is the extent to which the police and other authorities are allowed to collect, store and retain biometric and other data
• Has become extremely sophisticated in recent years and new technologies have been developed to help authorities
• Facial recognition
• A campaign group have argued that automatic facial recognition (AFR) is ‘an inherently oppressive and discriminatory surveillance tool’
• R v the chief constable of south wales police - had failed to adequately take account of the discriminatory impact of facial recognition technology
• Does not account for who they are actually finding and takes everyone’s information

Question 33

technology - DNA retention

Answer 33

• S and Marper v UK - said that the blanket retention of DNA was a breach of article 8
• This led to the government passing the protection of freedoms act 2012 - this set limits on blanket retention
• Gaughran v UK - where photographs , fingerprints and DNA, were retained after a conviction for drink driving

Question 34

can lead to positive changes in society

evaluations

Answer 34

• Protects the vulnerability of minority groups such as transgender rights
• Bensaid v UK - looks after both mental and physical wellbeing
• Protects the rights of those trying to kill themselves from having their images leaked ect - Peck v Uk