HRA 1998-Articles 8 & 10

Question 1

What right does Article 8 HRA 1998 provide for?

Answer 1

The right to private and family life.

Question 2

What four interests are protected by Article 8?

Answer 2

-Private life
-Family life
-Home
-Correspondence

Question 3

Is Article 8 a qualified right?

Answer 3

Yes, the state is able to interfere but only where the interference is in accordance with the law (in pursuit of a legitimate aim) and is necessary in a democratic society.

Question 4

What does private life cover under Article 8?

Answer 4

A person’s physical, mental and moral integrity.

Question 5

Will surveillance by the state constitute a violation of Article 8?

Answer 5

The use of surveillance measures must be in accordance with the law. If not, it is likely a violation will be found.

Question 6

Is there a duty imposed on the state by Article 8 to accept non-national spouses for settlement in that country?

Answer 6

No, Article 8 does not extend this far as seen in Abdulaziz, Cabales and Balkandali v UK (1985).

Question 7

What does a right to home life mean under Article 8?

Answer 7

The home should be protected from invasion and intrusion.

Question 8

Is the state under a positive obligation to manage things such as noise levels around airports under Article 8?

Answer 8

Yes, the right to a home life includes the right to be free of other interferences such as noise and other nuisances.

Question 9

Does the protection of correspondence under Article 8 extend to emails and text messages?

Answer 9

Yes, and recent case law has shown that telephone calls conducted from business premises and monitoring of emails by a public employer engaged Article 8.

Question 10

Do prison authorities have a right to open letters from a lawyer to a prisoner?

Answer 10

Campbell v UK (1993): prison authorities may only open a letter from a lawyer to a prisoner when they have reasonable cause to believe it contains an illicit enclosure, however the letter should only be opened and not read.

Question 11

What are the legitimate aims that can be pursued in order to interfere with Article 8?

Answer 11

1. National security-sizeable margin of appreciation afforded.
2. Economic well-being-balancing of resources.
3. Prevention of disorder or crime
4. Protection of health and morals

Question 12

What does Article 10 HRA 1998 provide for?

Answer 12

Article 10 protects freedom of expression, which includes the right to hold opinions and to receive ideas and information, as well as the right to express views and opinions.

Question 13

What kinds of expression can be protected under Article 10?

Answer 13

Freedom of expression can be used to protect a wide range of expression including:

(a) political opinion
(b) journalistic freedom
(c) artistic expression
(d) commercial information

Question 14

Do the Courts give stronger protection to political/journalistic expression than other forms?

Answer 14

Yes, political and journalistic freedom of expression is more protected than other forms.

Question 15

Does Article 10 create a general right of freedom to information?

Answer 15

No, and there is no free-standing positive duty of disclosure imposed by Article 10 on public authorities.

Question 16

Describe the case of Guardian v UK (1991) in the context of national security under Article 10.

Answer 16

‘Spycatcher’ case, a book written by a former member of British intelligence services, was going to be published by the newspapers

AG obtained interim injunctions against the newspapers preventing disclosure of the book pending outcome of applications for permanent injunctions based on breach of confidence

The newspapers appealed to the ECtHR on whether the inteference with freedom of expression was necessary in a democratic society

The period before the book’s publication in the USA was held to be relevant, sufficient and proportionate but following publication, the damage had been done and national security was no longer relevant therefore a permanent injunction was disproportionate.

Question 17

Is a wide margin of appreciation afforded in respect of determining issues relating to a state’s code of morality, refer to Handyside v UK (1976)?

Answer 17

Yes, Handyside v UK (1976): no uniform European conception of morality, therefore national authorities are in a better position to assess the necessity for any restriction on freedom of expression in order to uphold their own moral code.

Question 18

What is the indirect horizontal effect under S6(3) (a) HRA?

Answer 18

Under this provision, Courts and tribunals are identified as public authorities and therefore they must act in accordance with S6(1) and make decisions that are compatible with the Convention, even if both parties are private individuals.

Question 19

What criteria should be taken into account when balancing the rights under Articles 8 & 10?

Answer 19

The Court in Von Hannover (No2) stated that Articles 8 and 10 are of equal value and set out relevant criteria which contracting states should consider when balancing the rights:

1. Whether the information contributes to a debate of general interest
2. How well-known the person concerned is and the subject matter
3. Prior conduct of the individual concerned
4. Form and consequences of the publication
5. The circumstances in which the photos were taken, including whether consent was given