HRs Article 8 & 10

Question 1

How can a state interfere with qualified rights? (There are 3 requirements)

Answer 1

In accordance with / prescribed by law (Sunday times)
In pursuit of a legitimate aim
Necessary in a democratic society (proportionate)

Question 2

What are the legitimate aims that a state can interfere with article 8 under article 8(2)?

Answer 2

• national security
• public safety or economic well-being
• prevention of disorder or crime
• protection of health or morals
• protection of the rights and freedoms of others

Question 3

What does article 8 provide for?

Answer 3

Right to respect for private life and family life, their home and correspondence
(Very broad)

Question 4

What does article 10 provide for?

Answer 4

Freedom of expression

Question 5

What type of right is article 8 and article 10?

Answer 5

They are both qualified rights

Question 6

What is encompassed in the meaning of expression for article 10?

Answer 6

Political opinion
Journalistic freedom
Artistic expression
Commercial information
(Wide range)

Question 7

Should there protection under article 10 (freedom of expression) for forms of expression that offend, shock or disturb?

Answer 7

Yes it should provide protection but some forms of speech (inciting violence and hatred) are restrained

Question 8

Is there a stronger protection for political and journalistic expression?

Answer 8

Yes there is

Question 9

What is margin of appreciation for article 10?

Answer 9

Designed to take into account moral and religious beliefs and views = broader margin of appreciation for states to decide what degree of interference is necessary with expression

Question 10

What are the legitimate aims that article 10 can be limited by a state?

Answer 10

National security
Prevention of disorder or crime (protest)
Protection of health or morals
Protecting the reputation or rights of others
Preventing the disclosure of info received in confidence
Maintaining the authority and impartiality of the judiciary

Question 11

What is an indirect horizontal effect?

Answer 11

HRA recognises that courts and tribunals are public authorities and are therefore obliged, in accordance with s6(1) HRA, to act compatibility with the convention. Make decisions that are compatible with the convention (even if both parties are private individuals)

Question 12

does private life cover a person’s physical and moral integrity?

Answer 12

yes it does cover this

Question 13

does article 8 (private life) cover aspects relating to personal identity?

Answer 13

yes it does, such as a person’s name or person’s picture and could cover a ‘zone of interaction of a person with others, even in a public context

Question 14

is sexual orientation and fulfilment included in the respect for private life for article 8?

Answer 14

yes they are, not only relevant to a person’s privacy at home but also a person’s right to privacy at the workplace

Question 15

what does it mean that article 8 provides for correspondence? (what does it entail)

Answer 15

applied to letters, but advances in tech mean it has been extended to emails, text messages and other modern forms of communication

Question 16

when can a prison authority open a letter from a lawyer to a prisoner? (Campbell v UK)

Answer 16

when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose

Question 17

when are prison authorities allowed to read prison correspondence with their lawyer?

Answer 17

in exceptional circumstances when authorities have reasonable cause to believe that the privilege is being abused

Question 18

what are legitimate aims for interference with article 8?

Answer 18

they are possible justifications for interference with art 8, including: national security, prevention of crime, and protection of health and morality.

Question 19

freedom of express can be used to protect a wide range of expression including….

Answer 19

• political opinion
• journalistic freedom
• artistic expression
• commercial information

in practice, courts give stronger protection to political and journalistic expression than other forms of expression

Question 20

can article 10 also protect the right to receive information?

Answer 20

yes it can

Question 21

does article 10 cover the protection of the reputation or rights of others?

Answer 21

yes, it is the most common countervailing interest that has arisen (the importance of the protection of reputation)

Question 22

what is the Strasbourg court’s approach on blasphemy / offence to others on religious grounds?

Answer 22

Strasbourg court has generally allowed a wide margin of appreciation in this area, and national laws protecting religious sensibilities have generally been upheld as compatible with art 10.

Question 23

does article 10 provide protection for information which offends, shocks or disturbs?

Answer 23

yes it does

Question 24

what is a super-injunction (restraint on freedom of expression)?

Answer 24

it refers to an order retraining publication of material and, additionally, restraining info about the content of the order itself and even the fact that the order was made

Question 25

what does indirect horizontal effect mean as outlined in s6(3)(a) HRA?

Answer 25

courts and tribunals are identified as public authorises and must act in accordance with s6(1) and make decisions which are compatible with the convention, even if both parties are private individuals.

Question 26

what 2 elements did Campbell identify that are necessary for determining whether there has been a misuse of private info (now developed under HRA)?

Answer 26

• does the applicant have a ‘reasonable expectation of privacy’?
• conducting a balancing exercise between competing rights of privacy (art 8) and right to freedom of expression/publish (art 10)

Question 27

if a private party wishes to invoke a convention right in a dispute with another private party - what must be present?

Answer 27

there must be a pre-existing cause of action against the other private party, which to ‘hang’ the convention right

Question 28

What is the 5 relevant criteria which contracting states should consider when balancing art 8 and art 10?

Answer 28

1. whether info contributes to a debate of general interest
2. how well-known the person concerned is and the subject matter of the report
3. the prior conduct of the individual concerned
4. the form and consequences of the publication
5. circumstances in which the photos were taken (in particular whether person photographed gave their consent)

Question 29

when balancing art 8 and art 10 the 5 factors need to be taken into consideration. but what is the decisive factor that the courts should consider?

Answer 29

the extent to which the material in question contributes to a public debate of general interest