Articles 8 and 10

Question 1

What is the key objective of Art 8 and the four protected interests?

(Family life)

Answer 1

To protect individual citizens against arbitrary interference in their private life
1. Private life
2. Family life
3. Home
4. Correspondence

Broader concept than earlier protections i.e. death and torture

Question 2

Is Art 8 an absolute, limited or qualified right?

Answer 2

Qualified

Question 3

What is meant by a qualified right?

Answer 3

State is able to interfere with right but only where interference is:
1. In accordance with the law
2. Pursuant to one of the legitimate aims
3. Necessary in a democratic society

Question 4

What does it mean for proportionality to be key to the idea of ‘necessary in a democratic society’?

Answer 4

Fair balance between general interest of community and requirements of protection of individual’s fundamental rights

Question 5

When will interferences be considered necessary in a democratic society?

Answer 5

If they answer a pressing social need and are proportionate to the legitimate aim pursued

Question 6

What does ‘private life’ under Art 8 cover?

Answer 6

• Physical and moral integrity
• Personal identity
• Human dignity

Question 7

Will reduction in medial assistance constitute a breach of human dignity under Art 8?

Answer 7

Potentially - subject to the wide margin of appreciation re allocation of resources

Question 8

Does the right to die come under Art 8?

Answer 8

Unanswered (Nicklinson) - issue for Parliament to assess

Question 9

Is sexual orientation under Art 8 protected only in private homes?

Answer 9

No - sexual orientation is covered by people’s right to privacy in the workplace too

Question 10

Are searches - police officers, security guards, airport staff - a prima facie interference with right to private life?

Answer 10

Only if stop and search powers have insufficient safeguards and are not in accordance with the law

Search powers generally - i.e. airport bag searches - not breach

Question 11

When will state surveillance breach right to private life?

Answer 11

When it is not in accordance with a clear statutory framework

Question 12

Can police photographs be retained so as to not breach Art 8?

Answer 12

Yes - especially if retained beyond a reasonable period of time where it had become apparent subject had not committed any crime

Question 13

Is the right to private family life confined to the traditional family unit?

Answer 13

No - comprises living together in order that family relationships can develop and members can enjoy one another’s comany

Not confined to marriage-based rships - but ‘de facto’ ties too

AKA partners living together outside of marriage

Question 14

Will Art 8 be engaged in immigration cases to accept non-national spouses (to state residents) into the country?

I.e. lawfully settled UK citizen subsequently marries someone from country of origin - can the duty imposed by Art 8 extend to obligation on state to respect choice of country for matrimonial residence?

Answer 14

No - Art 8 does not extend to general obligation on state to accept non-national spouses for settlement in country

Question 15

Will rules designed to pursue legitimate aim always be safe from breaching the right to family life?

E.g. banning marriage visas where either party under 21 to prevent forced marriages

Answer 15

No - can breach Art 8 where interference is disproportionately impactful (meaning won’t be necessary in democratic society); must achieve aim by least intrusive means

The marriage visas ban was impacting on a greater number of unforced marriages than forced marriage - ban was not achieiving legitimate aim ny least intrusive means

Question 16

What happens where rights under Art 8 clash?

Evans - two former partners:
* One complained that domestic law allowed the other to withdraw consent to use by her of embryos created jointly by them (right to family life)
* Other complained that going ahead with treatment without consent - making him a parent against his will (right to private life)

Answer 16

Country is under a positive obligation to protect rights through enacting legislation (even if dispute is between individuals) - and legislation must be balanced

Applicant’s right to respect for decision to become a parent should not be accorded greater weight than her former partner’s right to respect his decision not to have genetically-related child with her - legislation appropriately balanced

Question 17

As well as the idea that a person’s home should be protected from invasion/intrusion, what does the protected interest of home extend to?

Answer 17

Maintaining the situation to which a person has become accustomed

Coughlan - health authority went back on promise not to move a paraplegic woman who had become accustomed to her adapted residence - breached Art 8

Question 18

Will warrants and (unannounced) visitis for monitoring purposes breach Art 8?

Answer 18

Only if they are overly frequent and can disclose private information about an offender to neighbours - otherwise policy designed to achieve legitimate aim of protecting rights of vulnerable people

Question 19

Will the quality of an individual’s home life fall under Art 8?

E.g. smell, noise, leaking of waste

Answer 19

Yes - but subject to margin of appreciation

Although quality might not be reduced by public body - e.g. noise from airports taking off - the state has positive obligation to manage it to protect rights

Question 20

What is covered by the protected interest of ‘correspondence’ under Art 8?

Answer 20

Lettes, email, texts, and other modern forms of communication

Question 21

Will the monitoring by an employer of emails and internet usage engage Art 8?

Answer 21

Yes

Question 22

Can prison authorities open a letter from a lawyer?

Answer 22

Only if they have reasonable cause to belive it contains an illicit enclosure which normal means of detection could not disclose

Question 23

Can prison authorities read a letter to a prisoner if they open it?

Answer 23

Only in exceptional circumstances when authorities have reasonable cause to belive privilege is being abused

Question 24

If a letter must be opened, what should be provided by prison authorities?

Answer 24

Suitable guarantees preventing the reading of the letter e.g. opening letter in presence of prisoner

Question 25

Can cells occupied by prisoners be searched in their absence?

I.e. prisoners would lose right over privileged legal correspondence

Answer 25

No - inhibits prisoners’ willingness to communicate candidly wise legal advisers and represented a degree of intrusion into privileged correspondence than policy intended to serve

Question 26

What does ‘in accordance with the law’ mean re interfering with a person’s right under Art 8?

Answer 26

There must be a legal basis to justify interference with the right

Question 27

What is the difference between ‘prescribed by law’ (Art 5) and ‘in accordance with the law’ (Art 8)?

Answer 27

Nothing - they are the same

Question 28

What conditions of ‘prescribed by law’ under Art 5 must also apply to ‘accordance with the law’ under Art 8?

Answer 28

• Law in question must be accessible and sufficiently precise to enable person to regulate conduct and reasonably foresee consequences of their actions
• Executive discretion should not be expressed in terms of unfettered power to provide for arbitrary acts

Question 29

Will an assertion of national security as a legitimate aim be automatically accepted?

Answer 29

No - but sizeable margin of appreciation is afforded

E.g. appellant under control order - imposition of a 16 hour curfew and requirement of living 150 miles away from family was violation of right to family life

Question 30

Can preserving family ties have primacy over the interest of economic well-being of a country?

I.e. refusal to grant residency where daughter is of the country’s nationality

Answer 30

Yes - Da Silva: balance should fall in favour of preserving family ties in situation where a residence permit is refused and child is of that country’s nationality

Question 31

Will blanket approaches for the prevention of disorder of crime permit state interference?

E.g. blanket DNA retention policy, blanket disclosure of previous convictions

Answer 31

Not if disproportionate to the identified legitimate aims, e.g. …
* Blanket DNA retention - failed to take into account gravity of offences and presumption of innocence
* Blanket disclosure of assult of child to organisation - applicant did not work with children as part of organisations

A more discriminatory (not blanket) policy is more likely to be proportionate means

Question 32

Can the retention of information for continuing police purposes (legitimate aim of crime prevention) be proportionate?

Answer 32

Yes

Question 33

Can interference with Art 8 be in accordance with the law and in pursuit of a legitimate aim and yet still be disproportionate?

Answer 33

Yes e.g. intimate and poorly regulated strip searching can be lawful and part of legitimate aim but still disproportionate

Question 34

What is protected by Art 10?

Answer 34

Freedom of expression

Question 35

Is freedom of expression a limited right?

Answer 35

No - it is a qualified right
1. Prescribed by law
2. Pursuit of legitimate aim
3. Necessary in a democratic society (proportionate)

Question 36

What does freedom of expression under Art 10 cover?

Answer 36

Hold opinions, receive ideas and information, express views and opinions

Words, pictures, images, actions intended to express ideas/views

Question 37

What kinds of ‘expression’ are there?

Think industry

Answer 37

• Political opinion
• Journalistic freedom
• Artistic expression
• Commercial information

Courts give strongest protection to first two

Question 38

How can freedom of expression be a ‘safety valve’?

As part of the ‘lifeblood of democracy’

Answer 38

People are more ready to accept decisions that go against them if they can in principle seek to influence them

E.g. Simms - blanket policy requiring journalists interviewing convicting criminals to give undertaking that contents would not be used in professional capacity offended free speech - purpose of interviews were to uncover miscarriages of justice

Question 39

Does the right to receive information under Art 10 create a general right to freedom to information?

Answer 39

No - there is no free-standing posititve duty of disclosure imposed by Art 10 on public authorities

E.g. disclose inquiries

Question 40

Examples of right to receive information

Answer 40

• Open Door v Ireland - absolute injunction preventing dissemination in Ireland of information re abortion services violated Art 10
• Wagstaff - holding in private of inquiry into multiple murderer contravened Art 10 as it constituted interference with receiption of information others wished to impart

Question 41

On what grounds might the right to freedom of expression be restricted?

I.e. What are the legitimate aims?

Answer 41

1. National security
2. Prevention of disorder and crime
3. Protection of health or morals
4. Protection of reputation or rights of others (racism, blasphemy, morality)
5. Preventing disclosure of information received in confidence
6. Maintaining authority and impartiality of the judiciary

But all must be prescribed by law and proportionate!

Question 42

Can Art 10 interests be limited in a situation involving a foreign state not sharing the values embodied in ECHR?

I.e. can freedom of expression be limited for national security

E.g. UK excluded dissident Iranian politician from the UK because her presence was not seen as conducive to the public good (had inks to proscribed organisation) - Home Sec worried of repercussions to UK-Iranian political relations

Answer 42

Yes - measures can be proportionate to protect imperative international relations

Question 43

Can GOV prevent recorded speeches from being broadcast?

E.g. - Bring - Home Sec made direction to prevent recorded speech from interviews with leaders and supporters of certain named organisations - inc Sinn Fein - from being broadcast

Answer 43

Yes - proportionate bans in interests of national security (terrorism) will not violate Art 10

Bearing in mind margin of appreciation between states

Question 44

Can an injunction continue and not breach Art 10 if the damage has already been done (information already disseminated) merely to protect the repuation of the relevant authority?

E.g. Spycatcher - injunction on book written by former member of intelligence services - continued after it was published

Answer 44

No - continuance of injunction - to protect reputation - was disproportionate

Question 45

Can a protest/demonstration be intercepted (and so Art 10 rights infringed on) on grounds that breach of peace is feared?

Answer 45

Preventative action only permissible if there’s a reasonable apprehension of a sufficiently imminent breach of peace

Premature and indiscriminate interception will def be disproportionate

Question 46

Can rights of protest (Art 10) be partially infringed on?

E.g. Gallastegui - C challenged removal of tent protests but protest remained intact in other respects; protestors banned only from setting up tents in that particular area?

Answer 46

Yes

Question 47

Can Art 10 be infringed on to protect health/state’s code of morality?

Answer 47

Yes - wide margin of appreciation!

Especially in sphere of morals, religion etc.

Question 48

What does it mean for ECHR to afford a broader margin of appreciation for interference with Art 10?

Answer 48

ECtHR less likely to supervise what degree of interference is necessary re expression that impacts upon moral and religious beliefs/views

But more likely to supervise journalistic/political matters

Question 49

Is it for the ECtHR or national authorities to assess necessity of restriction on freedom of expression to uphold moral code?

Answer 49

National authorities - in a better position to assess this

E.g. Handyside - children’s publication included advice on sex education - applicant convicted under Obscene Publications Act and no Art 10 violation found

Question 50

Can criminal convictions for obscene material be proportionate to protect public morals?

Answer 50

Yes

Muller - artist made very graphic sexual paintings - visitors who had no warning reacted badly to paintings at exhibition - subsequently convicted for publishing obscene material - actions were proportionate

Question 51

Will protecting the reputation of a politican be a legitimate restriction of freedom of expression?

Answer 51

Likely to be disproportionate; ECtHR says limits of acceptable criticism for politicans are wider than they are for ordinary citizens

Politicians must display a greater degree of tolerance of criticism

Question 52

Can freedom of expression be limited on taste/decency?

Rather than underlying political/ethical message

Answer 52

Yes - so Art 10 can protect not only substance of ideas but the tone/manner in which they are conveyed

E.g. Profile Alliance - use of graphic video of abortions was subject to a proportionate restriction (rathert than underlying message)

Question 53

How large is the margin of appreciation re limiting freedom of expression for reasons of blasphemy?

I.e. how protected is offence to religion

Answer 53

Wide margin of appreciation allowed as no uniform conception across Europe of significance of religion and this varies between individual states; margin of appreciation left to national authorities to judge this

E.g. Otto - film with blasphemous themes permanently forfeited

National laws protecting religious sensibilities generally held compatible w Art 10

Question 54

Can the margin of appreciation have application on a sub-national level?

E.g. only for certain regions

Answer 54

Yes e.g. Otto - religiously offensive film banned only in Roman Catholic area of Austria (offence to local population outweighed right to show the film

Question 55

What happens when Art 9 (freedom of religion) clashes with Art 10 (freedom of expression)?

Lee - NI bakery refused to ice ‘Support Gay Marriage’ cake and both Arts were engaged

Answer 55

Court produced distinction between:
* Action which discriminated against customer because of sexual orientation
* Refusal to make a statement with which it did not agree

Question 56

How much protection does Art 10 afford to expression containing racist comments/comments supportive of terrorism?

Answer 56

Low, unless they promote or form part of a wider public debate

Question 57

Can a comedian rely on Art 10 to make racist jokes?

M’Bala - made ‘public insults towards group of persons based on religious or racist grounds’ and claimed that conviction represented breach of Art 10 rights

Answer 57

No - ECHR is based on democracy and non-discrimination which jokes seek to undermine

Freedom of expression should not be upheld for ends incompatible w ECHR

Question 58

Should a journalist who interviews people with offensive views be classed as aiding and abeting (giving a platform to) them and so in breach of Art 10?

Even if they completely reject their views

Jersild - interviewed racist right-wing group and was convicted under Danish Penal Code for aiding and abeting them

Answer 58

No - proper, critical jouralism is important in press playing vital role of ‘public watchdog’

Criminal sanction against journalist would be disproportionate

Question 59

Does breach of confidence, as a civil remedy, conflict with Art 10?

Breach of confidence = GOV can rely on to prevent disclosure of confidential information

Answer 59

No, it can be justified with the legitimate aim of national security

Question 60

If a journalist is refusing to disclose the source of confidential information, can his conviction be protected (opposed by) by Art 10?

Answer 60

Yes (even if prescribed by law; will not be proportionate) - journalistic sources of free press must be protected in a democratic society

Unless justified by overriding requirement in public interest

Another reminder of strong protection for serious journalism!

Question 61

Can maintaining the authority and impartiality of the judiciary be a legitimate aim in restricting Art 10 even if this means limiting free press by injunction?

Sunday Times - article on drug controversy pre-judged legal issues and pressurised party into settlement pending litigation

Answer 61

Yes - but interference must be necessary in democratic society (proportionate)

Question 61

When will disclosure be proportionate and thus not contravene Art 10?

Answer 61

When there is a serious risk of further selling of confidential information

Ashworth - medical records were obtained by a hospital in breach of confidence/contract by employee and source had to be identified to protect further breaches

Question 61

Does Art 10 prevent Art 8 from imposing a positive obligation on states to enact a legal measure requiring notification from media in advance of publishing information about their private lives?

Answer 61

Yes - this would restrict the media’s freedom of expression under Art 10

Question 62

What is meant by the ‘indirect horizontal effect’ of the HRA?

Cf vertical direction = protection for individuals against public authorities interfering with their Convention rights

Answer 62

The obligation of courts and tribunals (as public authorities) to develop the common law in accordance with the Convention and consider Art 8 and 10 rights even where no public authority is a party to the litigation

I.e. The influence that HRA can have over legal determination of claims between private individuals/private organisations with legal personality

Question 63

Where does the obligation of the indirect horizontal effect come from?

Answer 63

S6(1) of the HRA - public authorities must act compatibly with the Convention

Question 64

Does indirect horizontal effect mean there is a free-standing cause of action between private individuals?

Answer 64

No - there must be a pre-existing cause of action against the other private party upon which to ‘hang’ the Convention right

E.g. such as - as is the focus in this topic - the tort of the misuse of private information (results in engagement of Art 8)

Question 65

Must the two private parties have an initial confidential relationship for a successful breach of confidence claim where Art 8 and 10 are part of the cause of action?

Answer 65

No

Campbell - Naomi Campbell’s claim against Mirror for breach of confidence

Question 66

What are the two elements necessary for determining whether there has been a misuse of private information as developed under the HRA?

Answer 66

1. Whether Art 8 engaged in first place depends on whether applicant has a ‘reasonable expectation of privacy’
2. If Art 8 engaged, next stage of inquiry is to conduct a balancing exercise between competing rights in Art 8 and 10 and consider whether publication necessary

Question 67

What is the test for ‘reasonable expectation of privacy’?

Answer 67

1. Is information obviously private? (if yes = can reasonably expect privacy to be respected)
2. If not, would a reasonable person of ordinary sensibilities find the disclosure offensive?

Nature of private information = personal to the person who possesses it and does not intend it to be imparted to general public

Question 68

What else is relevant for determining a reasonable excpectation of privacy?

Answer 68

All circumstances of case: nature of activity in which C engaged, place at which it was happening, nature and purpose of intrusion, absence of consent, effect on C…

Question 69

When will there not be a reasonable expectation of privacy?

Answer 69

• When performing a very public function (e.g. royal navy officer)
• When involved in crime/rioting
• Where information is in public domain
• Where a person will waive privacy by placing information in public domain (does not mean all privacy waived!)

Question 70

Will photographs of innocuous conduct taken in public places breach a reasonable expectation of privacy?

E.g. celebrity getting photographed going about daily life

Answer 70

• ECtHR has found activities of purely a private nature - going about daily life - to engage Art 8
• CoA said mere taking of a photograph would not engage article in all situations, and consideration of all circumstances required e.g. effort to keep out of public eye, whether consent asked, whether photograph published etc.

Question 71

What is the decisive factor in the balancing exercise between Art 8 and Art 10 re the publication of private information?

Answer 71

The contribution that the published photos and articles make to a debate of general interest

Question 72

What are the 5 relevant criteria contracting states should consider when balancing the rights?

Answer 72

1. Whether information contributes to debate of general interest
2. How well-known person is and subject matter of report
3. Prior conduct of individual
4. Form and consequences of publication
5. Circumstances in which photos were taken and whether subject gave consent

Question 73

Does either right have precedence over the other?

Answer 73

No - about focus on comparative importance and proportionality test

Question 74

When is Art 10 likely to be preferred?

Answer 74

• In cases of open justice (e.g. reporting on crime)
• When someone in a public role demonstrates poor/offensive behaviour
• The ill-health of a notable public figure

Question 75

When is Art 8 likely to be preferred?

Answer 75

• Materials covering wholly private sphere of life that satisfies nothing but curiosity of the general publi
• Private diary extracts
• Unsubstantiated claims of poor behaviour

Question 76

Do individuals have a right to receive advance notification from the media before publication so they may seek an injunction?

Answer 76

No - would have to great a detriment on Art 10

Question 77

Does Art 10 protect disclosure of purely private sexual encounters?

As in can journalists disclose without repercussions?

Answer 77

Unlikely - there is usually no public interest in the disclosure of this and any disclosure likely constitutes tort of invasion of privacy

Question 78

Where does the law stand on super-injunctions re PARL activity?

Answer 78

Seen as an attempt to restrict reporting of parliamentary proceedings and therefore a restriction on transparency and openness which are required for rule of law

Question 79

Can an injunction be warranted for an abusive parent to protect children?

Answer 79

Yes, even though this controversially allows a C to bolster case because of impact of own wrong-doing