Article 8 - topic 17

Question 1

What is a qualified right?

Answer 1

A right that can be restricted by the state in the same circumstances.
A balance needs to be struck between the rights of the individual and the rights of the community.

Question 2

Margin of appreciation

Answer 2

The amount of discretion the ECHR gives the state in the interpretation of the convention.
E.g. Homosexual rights and freedom.

Question 3

Private life

Answer 3

1. Sexuality
   Goodwin v UK - banning homosexuals from marrying breached their right to private life.
   Gender Recognition Act was subsequently passed.
   Sheffield and Horsham v UK - Article 8 is a living instrument (needs to move with the times).
2. Reputation/ names/ private information:
   Richards v BBC confirmed and developed ……. established in Van Hover v Germany: has a reasonable expectation in relation to the above:
   a) attributes of the claimant
   b) nature of activities in which the claimant was engaged
   c) circumstance information came who publishes hands.

Peck v UK - CCTV images published breached privacy.
Menghesa v MPC - images taken to exit a kettle breached A8.
Murray v Express Newspapers - photos of JK Rowling’s children breached privacy.

3. Data - an individual has the right to respect for privacy of their data.
   Axon v SoS for Health Service - child who is Gillick competent was held to have their medical records kept private from their parents.
   S and Marper v UK - DNA fingerprint data laws changed due to the Protection of Freedoms Act 2012.
4. Warwright - Strip search was held to violate A8 as it was disproportionate to the aim of preventing crime and disorder.
   Gillan and Quinton v UK - breached A8 as there were no grounds.

Question 4

Section 8.1

Answer 4

Everyone has the right to respect for his private and family life, his home and his correspondence.

Question 5

Section 8.2

Answer 5

Can be restricted in accordance with law and if it is necessary in a democratic country in:
a) The interests of national security
b) The interests of public safety
c) The interests of economic wellbeing of the country
d) The interests for the prevention of disorder or crime
e) Protection of health of morals
f) Protection of the rights and freedoms of others

Question 6

Family Life

Answer 6

Respect a family’s choice regrading sexuality, marriage, children however Aggarko and Ikvga v SoS for Home Office states that only in exceptional circumstances would they be allowed to stay in the UK e.g. where there are insurmountable obstacles in the way.

Question 7

Home life

Answer 7

The right to enjoy your home without interference

Question 8

Correspondence

Answer 8

Phone calls, letters, text messages and emails.
Barbulescu v Romania - employers have to be warned if private emails are to be read.

Question 9

If a private individual or company has breached reasonable expectations of privacy…..

Answer 9

The claimant must sue using the tort of misuse of private information.

Question 10

Douglas v Hello

Answer 10

Confirmed the cases of ECHR can be used to interpret what tort of misuse of personal information is.

Question 11

PJS v New Grap

Answer 11

Neither A8 or A10 takes precedence over each other.

Question 12

McKennitt v Ash

Answer 12

Managed to prevent publication of book title by a threat on the grounds of privacy.