HR 3- Article 8 and 10 Flashcards
what is article 8?
right to private and family life.
8(1)- state must respect each person’s private and family life, their home and correspondence.
is article 8 a qualified right?
yes, interference must be in accordance with the law, pursuant to a legitimate aim and be necessary in a democratic society.
what does ‘necessary in a democratic society’ mean?
answer a pressing social need and are proportionate to the legitimate aim pursued.
does sexual orientation come within the respect for private life?
yes, discussions at home and the workplace are within article 8.
other issues include personal dignity, searches of the person, state surveillance, marriage rights, immigration and abortion.
is family life confined to marriage?
no, it can include partners living together outside of marriage.
is there a right to quality of home life?
yes an individual’s right to respect his home includes not just the right to the physical area but the right to be free of other interferences such as noise, or other nuisances such as smell or the leaking of waste.
what are the legitimate aims under article 8?
- national security.
- economic well being.
- prevention of disorder or crime.
- protection of health or morals.
what is article 10?
right to freedom of expression.
qualified right.
includes right to hold opinions and to receive ideas and information, as well as the right to express views and opinions.
is there a big margin of appreciation for article 10?
yes, affords a broader margin of appreciation to states to decide what degree of interference is necessary with expression that impacts upon moral and religious beliefs and views.
what are the other legitimate aims for article 10?
- protecting the rights or reputation of others (e.g morality, blasphemy/offence on religious grounds, racism and terrorism)
wide margin of appreciation for blasphemy/religious offences, less wide for racism and terrorism unless they form part of a wider public debate.
- preventing the disclosure of information received in confidence.
- maintaining the authority and impartiality of the judiciary.
what is the new cause of action named misuse of private information?
a) whether the applicant has a reasonable expectation of privacy.
b) balancing exercise between the competing rights of articles 8 and 10 and whether the publication was necessary.
how do the courts undertake a balancing exercise between 10 and 8?
- whether they make to a debate of general interest.
- principle of open justice and reporting of criminal trials.
