Article 8 - The Right To A Private Life (paper 3) Flashcards
What rights?
Everyone has the right to respect for his private and family life, his home and his correspondence.
What is the aim of article 8?
Protect individuals against arbitrary interference by a public authority/body with their private life, family home or correspondence.
Qualified rights?
Art 8 is a qualified right (as are 10+11)
Means that the right can lawfully be limited (some interference allowed)
Limitations must take into account of the fair balance, which must be struck between the competing interests of the individual and society as a whole.
What are the limitations to article 8?
Any limitations must be - in accordance with the law, necessary+proportionate, for one of the legitimate reasons set out in art 8(2), which includes :
- interests of national security
- interests of public safety and economic wellbeing of he country (Buckley v UK 1996 - caravan busy road)
- prevention of crime (Malone v UK)
- protection of health/morals (lackey, Jaggard and Brown v UK)
- protection of rights/freedom of others (Chappell v UK)
Who does Art 8(10) apply to?
Klass v Germany - ECtHR refers to citizens
Niemietz v Germany - can include ‘business life’ in some circumstances
Organisations with separate legal persona have rights under Article 8
What does Art 8(1) cover? (SCOPE)
- private life
- family life
- home
- correspondence
What does ‘PRIVATE LIFE’ mean?
- physical and psychological integrity of the person
- sex life and gender
- personal data
- reputation
- names
- photographs
- everyone has the right to life the way they want to
What does ‘FAMILY LIFE’ mean?
- care proceedings
- access to child/contact
- breaks up of family relations through immigration rules
- have children
- marry/form relationships
What does ‘RESPECT’ mean?
The state must not interfere with Art 8 rights
The state must protect Art 8 rights
Sheffield & Horsham (1999) - Uk refused to allow 2 individuals who has gender re-assignment surgery to be recognised. UK would not allow new birth certificates. ECtHR said there was no breach of Article 8, but in 2004 the gender recognition act 2004 was made, creating new gender recognition certificates.
What does ‘HOME’ mean?
Right to enjoy home peacefully - state should not enter, stop you entering/living there, unless you have a good reason.
Extends to landlords and tenants in some situations
Includes right to peaceful enjoyment without excessive noise/pollutions
What does ‘CORRESPONDENCE’ mean?
All forms of communication (phone, text, letter, email, social media)
UK law and privacy
-complex area of law
-no right to privacy in English law
-passing of HRA 1998, which brings art 8 into English law system has improved this (does not apply to private disputes)
-tort of breach of confidence - claimants must show there has been an unauthorised use of information to the detriment of the owner and when considering courts must now weigh up the article 8 right to a private life against the art 10 right to freedom of expression and whether is it public interest.
-protection from harassment act 1997
-data protection act 1998
-regulations of investigatory powers act 2000 and 2016
Laws that deal with privacy:
- tort of misuse of private information
- tort of deformation
- protection from harassment act 1997
- data protection act 1998
Halford v United Kingdom (1997) - right to private life
Phone calls were intercepted by senior police officers to obtain information
Interception of the phone calls was a breach of the right to a private life
Campbell v MGN Ltd (2004) - right to private life
Naomi Campbell was photographed coming out of a narcotics anonymous meeting in London
The photographs were an interference with her right to privacy, even though the fact she was receiving treatment was in the public domain.
Niemietz v Germany (1992) - right to a private life
Police searched lawyers office to try identify suspect
The search was a part of a home and the lawyers private life (private life includes being at work)
Johannsen v Norway (1996) - right to family life
Natural parents of a child were opposed to the decision of the state with respect to adoption
Should be best interests of child, which may override the interests of parents
Agyarko and Ikuga v secretary of the state for the home department (2015) - right to family life
Applicants has overstayed permits to be in the UK, and relied on relationship with British citizens in order to remain
Claims had failed as there were no obstacles preventing them from continuing their relationships outside the UK (no exceptional circumstances under art 8 existed)
Gaskin v UK (1989) - right to family life
Applicant wanted access to his case records held by local authorities, request was denied
Was a breach of his rights under Article 8
McDonald v McDonald (2016) - right to home and corespondent
Claimants parents purchased mortgaged property but they had financial difficulties - mortgage company wished to evict her.
Art 8 did not apply in this case so courts did not have to consider proportionaliy.
Barbulescu v messenger (2016) - right home and correspondence
Mr barbulescu used business email to send personal messages - he was dismissed
Breached art 8 by not striking the right balance between its interests and his right to respect for his private life and correspondence
Evan’s v UK - private life (reproductive rights)
ECtHR held that UK law which banned use of frozen embryos without consent of both parties (after breakdown of relationship) was not a breach of article 8 rights.
Family life
-courts decided that detention of a pre-op transgender woman in male prison was a breach of her privacy under article 8
-under the sexual offences act 2003 all people sentenced to 30+ months in prison for a sexual offence are a subject to a lifelong duty to notify police of. Their one address and travel abroad.
Home
-right to enjoy your existing home peacefully, not simply the right to a house
-public authorities should not stop you entering or living in your home without good reason
-public authorities should not enter without your permission or good reason
-what is a home is decided on a case-by-case basis
-state does not have a duty to provide you with a home
-right not to be evicted
Correspondence
-a public may be able to interfere, with your right to a private and family life to protect public safety or the freedom’s of others - but interception must being accordance with law and be for legitimate reason set out in art 8(2)
Defamation
- deformation act 2013
- deformation is making a statement, which causes someone to think worse of another
- successful claim requires - (1) a defamatory statement (2) statement identifies/refers to claimant (3) is published to a third party.
- defences - (1)truth - S2 (2)honest opinion - S3 (3)public interest? (4)internet intermediaries (5)Qualified privilege which is when the statement is made for public protection
Health records
Respecting confidentiality of health data is important, and the UK courts have ensured this with cases such as Gillian and Axon v Secretary of State (doctors wanted courts to declare GPs could share health data with parents of all children under 16 - courts said no as breach of article 8)
Sexual identity and equality of treatment
- UK has worked on changing UK law to ensure it is compatible with ART 8
- in Goodwin v UK ECtHR said the UK law beached art 8 by no allowing same sex couples to marry
- UK has now passed the Civil Partnerships act 2004 and The Marriage (same sex couples) act 2013
- in B v UK (2000) the CtHR ruled that the age of consent should be the same for heterosexual and homosexual couples
Conner’s v UK - right to home
UK breached art 8 rights by evicting him from lawful travellers site, breathing right to a home.
Evaluation - the scope of private life
This article has been given a very wide and inclusive meaning by ECtHR
While the scope has clearly intended to open up art 8 to the broadest possible, it has also been criticised for making the right to uncertain
Lord walker in R v Secretary of State for home departments (2004), expressed his concerns that the words were unclear and any rights developed from this could be seen as ‘volatile and abstract’
Evaluation - Celebrities and private life
Can be argued that those who benefit most are those able to bring high profile such as celebrities to protect their private life. (Campbell, Weller, cliff Richard)
The issue of proportionality and balancing competing right demonstrates that HR law is an area where simple answers are not easy to find.
Evaluation- meaning of “family life”
The word ‘family has been interpreted in a very flexible way, which has changed to stay in tough with societal change
Not based on the traditional idea of marriage (kroon v Netherlands 1995)
Idea of family includes grandparents, adoptive children, foster relationships, same-sex couples
Held to cover the ongoing ties which continue after a divorce (Berrehab v Netherlands 2004)
Evaluation - DNA retention
- Uk is one of the few council of Europe jurisdictions to permit indefinite retention of DNA profiles, finger prints and photographs of convicted people
- no provision allowing the applicant to apply to have data concerning them deleted if its no longer needed
- keeping the DNA without reference to the seriousness of offence, fails to strike a fair balance between public and private interests
The tort of breach of confidence - introduction
- Individual can only take direct court action to enforce their HR, against the public body, Under the ECHR and HRA 1998
The tort of beach of confidence- definition
- there are two remedies;
- breach of confidence has yet to take place (injunction)
- breach of confidence has already taken place (damages)
The tort of breach of confidence - elements
- information was obtained in a way that would give rise to privacy
- info must have quality of confidence
- must be used in unautorised way
- C must have sufficient detriment because of D’s breach of confidence
The tort of breach of confidence - defences
- information was already in public domain (Douglas v Hello magazine)
- information was not confidential
- information was in the public interest (Max Mosley v News group)
- expectation of confidentiality between wife and husband (duchess and Duke of argyle)
- lawyers and confidentiality (lawyers must respect confidentiality)
Interception of communication by the state - definition/intro
- 2 main acts of parliament which set out the current laws o a public body, intercepting a citizens correspondence
- (1) The regulation of investigatory powers act 2000
- (2) The investigatory powers act 2016
The regulation of investigatory powers act (2000)
- it is ok for state to intercept communication if it follows the correct procedures set out in the acts
- S1 RIPA said it was unlawful to intercept with n consent
What does S1 of the regulation of investigatory powers act 2000?
- s1(1) - offences to intercept with no consent
- s1(2) offence for a person with no authority to
What does S5 of the regulation of investigatory powers act 2000 say?
- says that interception is lawful if a warrant is issued by secretary of state
- S5(2) says that the secretary of state will only intercept if it is necessary and proportionate
What does S6 of the regulation of the investigatory powers act say?
- says that only people that can apply for a interception warrant are people listed in S6(2)
- eg - DG of security services
What does S32 of the regulation of investigatory powers act say?
- sets out grounds for intrusive surveillance
- (a), (b) and (c) says that it must be necessary and proportionate and that the grounds are to prevent serious crime or to protect national security and economic well being
What does S65(2) in the regulation of investigatory powers act say?
- (a) says that any review/complaints about the action of the secret services is by TRIBUNAL ONLY & not in open court
- eg Home office v UKIP
