HRs - Arts 8 and 10 Flashcards

1
Q

What is the purpose of Article 8 of the European Convention on Human Rights (ECHR)?

A

The key objective of Article 8 ECHR is to protect individual citizens against arbitrary interference in their private life. It aims to ensure freedom, autonomy, and the ability to lead and improve one’s life.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What does Article 8 of the European Convention on Human Rights protect?

A

Article 8 of the European Convention on Human Rights protects the interests of private life, family life, home, and correspondence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What did the Court of Appeal hold regarding disclosure of convictions and cautions?

A

The Court of Appeal held that disclosure of convictions and cautions engaged article 8 because it could adversely affect a person’s ability to engage in aspects of their private life, including working and developing relations with others.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What case involved the Hatton family and the noise levels around Heathrow Airport?

A

The Hatton v UK (2002) 34 EHRR 1 case scrutinized government efforts to reduce noise levels around Heathrow Airport, which was negatively affecting the quality of life of the Hatton family.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

How does the notion of ‘family life’ in Article 8 extend beyond marriage-based relationships?

A

The notion of ‘family life’ in Article 8 is not solely confined to marriage-based relationships. It may encompass other de facto ‘family ties’ where partners are living together outside of marriage.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What obligation did the government have in managing the noise levels around Heathrow Airport?

A

While the government was not directly responsible for the noise, it was seen to be under a positive obligation to manage it.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the distinction made by the court in cases involving racist comment or support of terrorism?

A

The ECtHR has generally provided a lower degree of protection for forms of expression that include racist comment or can be seen as supportive of terrorism, unless they promote or form part of a wider public debate. This distinction was observed in cases such as Brind and M Bala M Bala v France.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Under what circumstances can the state interfere with the rights protected by Article 8 of the ECHR?

A

According to Article 8(2) of the ECHR, the state can interfere with the rights protected by Article 8, but only if the interference is in accordance with the law, pursues one of the legitimate aims set out in Article 8(2), and is necessary in a democratic society. The principle of proportionality is infused into the jurisprudence of the ECHR to determine whether an interference is necessary in a democratic society.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

In what situations might Article 8 be engaged in immigration cases?

A

Article 8 may be engaged in immigration cases when decisions by states to expel a person from a country or refuse to admit someone result in the separation of spouses or partners, or of parents and children. Although the Convention does not recognize a right to reside in a particular country, any action by a public authority that might disrupt the family unit may engage Article 8.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is the principle of proportionality in relation to Article 8 of the ECHR?

A

The principle of proportionality is infused into the jurisprudence of the ECHR. It requires a fair balance between the demands of the general interest of the community and the protection of the individual’s fundamental rights. Interferences with Article 8 rights will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What was the reasoning behind rejecting Dieudonné’s claim of a breach of his article 10 rights?

A

Dieudonné, a French comedian, claimed that his conviction for causing public insults towards a group of persons based on religious or racial grounds represented a breach of his article 10 rights. However, his claim was rejected on the basis that he should not be able to rely on a set of rights in the Convention, based on democracy and non-discrimination, which he was effectively seeking to undermine and mock through a display of overt anti-semitism.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What case established that interceptions of postal and telephone communications by the police violated Article 8?

A

In Malone v UK (1985) 7 EHRR 14, the ECtHR held that interceptions of the applicant’s postal and telephone communications by the police for the purpose of the prevention and detection of crime violated Article 8. This was because English law did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What was the ruling in the case of Abdulaziz, Cabales, and Balkandali v UK regarding the choice of matrimonial residence?

A

In the case of Abdulaziz, Cabales, and Balkandali v UK, the Court held that the duty imposed by Article 8 could not be considered as extending to a general obligation on the part of the state to respect the choice by married couples of their country of matrimonial residence and to accept non-national spouses for settlement in that country.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Can you provide examples of cases where Article 8 of the ECHR has been applied?

A

There have been various cases where Article 8 of the ECHR has been applied. For example, in Costello-Roberts v UK, the court considered that ‘private life’ covered a person’s ‘physical and moral integrity’. In Von Hannover v Germany, the ECtHR stated that Article 8 extended to aspects relating to personal identity. Other cases involve issues such as human dignity, sexual orientation, searches of the person, surveillance by the state, and family life.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What did the court find in the case of Halford v UK?

A

In Halford v UK (1997) 24 EHRR 523, telephone calls conducted from business premises were found to engage Article 8. The case of Copland v UK [2007] ECHR 62617/00 confirmed this and stated that monitoring of emails and internet usage by a public employer also engaged Article 8.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What was the ruling in the case of Jersild v Denmark?

A

In the case of Jersild v Denmark, the applicant, a journalist, interviewed members of a racist right-wing group who made abusive remarks about immigrant and ethnic groups in Denmark. The ECtHR held that the criminal measures taken against the applicant were disproportionate and that his news reporting based on interviews constituted one of the most important means whereby the press is able to play its vital role as a ‘public watchdog’.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What was the ruling in the case of Quila v Secretary of State for the Home Department regarding marriage visas?

A

In the case of Quila v Secretary of State for the Home Department, the Supreme Court held that a ban contained in the Immigration Rules on the grant of marriage visas, where either party to the marriage was under 21 years old, breached the right to family life guaranteed by Article 8. The ban was found to disproportionately impact a greater number of unforced marriages than forced marriages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What does Article 8 of the ECHR protect in relation to private life?

A

Article 8 of the ECHR protects a person’s private life, which includes their physical and moral integrity. The concept of ‘private life’ has been given a wide meaning by the European Court of Human Rights (ECtHR), and it covers various aspects of personal identity and interactions with others, even in a public context.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What was the significance of the Goodwin v UK case?

A

In the case of Goodwin v UK, a journalist working for The Engineer magazine refused to disclose his source of confidential company information and was convicted of contempt of court. The ECtHR found that this was a violation of his article 10 right. The court emphasized the importance of protecting journalistic sources for press freedom and stated that disclosure of sources should only be justified by an overriding requirement in the public interest.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What rights do prisoners have regarding correspondence with their legal advisors?

A

The ECtHR has accorded a particularly high degree of protection to prisoners’ rights to communicate with their legal advisors. In Campbell v UK (1993) 15 EHRR 137, it was held that prison authorities may only open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should only be opened and not read, and suitable guarantees should be provided to prevent the reading of the letter.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

How does Article 8 of the ECHR relate to human dignity?

A

Respect for human dignity is a fundamental aspect of Article 8 of the ECHR. The ECtHR has stated that the ‘very essence’ of the Convention is respect for human dignity and freedom. Cases involving issues such as the reduction of care assistance and the right to die have been considered in relation to human dignity.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What common law right did Lord Bingham recognize in R (Daly) v Secretary of State for the Home Department?

A

Lord Bingham recognized a common law right to confidentiality over privileged legal correspondence. In the case, it was found that a blanket policy allowing cells occupied by prisoners to be searched in their absence violated this right

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What legitimate aim can justify an interference with a person’s rights under Article 8?

A

One legitimate aim that can justify an interference with a person’s rights under Article 8 is national security. However, an assertion of national security will not automatically be accepted, and the ECtHR may scrutinize the proportionality of the interference.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Under what circumstances can personal searches be considered an interference with the right to respect for private life?

A

Personal searches of the body and belongings can be considered a prima facie interference with the right to respect for private life. In the case of R (Gillan) v Commissioner of Police of the Metropolis, the House of Lords held that ordinary superficial searches, such as those conducted at airports, did not amount to a violation of Article 8. However, the ECtHR held that there were insufficient safeguards in the domestic legislation to protect individuals against arbitrary interference with their Article 8 rights.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is the legitimate aim of maintaining the authority and impartiality of the judiciary?

A

Maintaining the authority and impartiality of the judiciary is a legitimate aim that serves to uphold the role of the judiciary. However, it can cause tension with other constitutional ideals, such as the idea of open justice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What did the Supreme Court find about the systems of data retention operating in the cases of R (Catt) and R (T)?

A

The Supreme Court ultimately found that the systems of data retention operating in the cases of R (Catt) and R (T) were essentially proportionate in seeking to fulfill the legitimate aim of crime prevention, although there were some differing opinions among the justices and dissent from Lord Toulson.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

How does state surveillance relate to the right to respect for private life under Article 8 of the ECHR?

A

The use of state surveillance measures can interfere with the right to respect for private life under Article 8 of the ECHR. In Khan v UK, the ECtHR asserted that the use of surveillance measures would only be considered ‘in accordance with the law’ if a clear statutory framework existed. The Regulation of Investigatory Powers Act (RIPA) 2000 provides such a framework in the UK.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What case involved the imposition of a curfew and the requirement to live far from family as a violation of Article 8?

A

In Secretary of State for the Home Department v AP [2010] UKSC 24, the Supreme Court held that the imposition of a 16-hour curfew and the requirement to live 150 miles from family was a violation of the appellant’s right to family life under Article 8.

29
Q

What is prior restraint and what level of justification does it demand?

A

Prior restraint refers to interference with free speech before it occurs, such as through an injunction. Interference with free speech through prior restraint demands a very high level of justification.

30
Q

Can you provide examples of cases where state surveillance has been considered an interference with the right to respect for private life?

A

In Khan v UK, the ECtHR held that the use of surveillance measures without a clear statutory framework constituted an unlawful interference with the right to respect for private life. In R (Wood) v Commissioner of Police of the Metropolis, the retention of police photographs beyond a reasonable period of time, when the individual had not committed any crime, was seen as disproportionate and a breach of Article 8 rights.

31
Q

What is breach of confidence and how can it be used by the government?

A

Breach of confidence is a civil remedy preventing the disclosure of confidential information. It can be used by the government as a supplement to the Official Secrets Act and justified by the legitimate aim of national security.

32
Q

How does Article 8 of the ECHR protect family life?

A

Article 8 of the ECHR protects a person’s family life, which includes relationships with spouses, partners, and children. The concept of ‘family’ in Convention terms is broad and not restricted to the traditional family unit. The right to respect for family life is important in cases and disputes involving family relationships.

33
Q

Why did the court find the searches in Wainwright v UK not proportionate?

A

While the searches were held to be in accordance with the law and pursued the legitimate aim of prevention of crime and protecting the health of the prisoners, the court was not satisfied that the searches were proportionate to the legitimate aim due to the intimate and poorly regulated manner in which they were carried out.

34
Q

What issue can journalists raise in their defense against an action?

A

Journalists can raise the issue of the need for confidentiality of sources of information in their defense against an action. This issue highlights the importance of protecting journalistic sources for press freedom.

35
Q

What is the significance of the phrase ‘necessary in a democratic society’ in relation to Article 8 of the ECHR?

A

The phrase ‘necessary in a democratic society’ is common to the qualified rights, including Article 8 of the ECHR. It represents the most direct application of the principle of proportionality. Interferences with Article 8 rights will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.

36
Q

What does the concept of private life in Article 8 encompass?

A

The concept of private life in Article 8 encompasses measures that affect a person’s physical, mental, and moral integrity, among other issues.

37
Q

What is the importance of protecting journalistic sources according to the ECtHR?

A

The ECtHR emphasized the importance of protecting journalistic sources for press freedom in a democratic society. It stated that such protection is one of the basic conditions for press freedom and that measures demanding the disclosure of sources cannot be compatible with Article 10 unless justified by an overriding requirement in the public interest.

38
Q

How did the Supreme Court rule in the case of R (Coughlan) v N and E Devon Health Authority regarding the protection of home life?

A

In the case of R (Coughlan) v N and E Devon Health Authority, the claimant, who was paraplegic and had become accustomed to a particular place of residence specially adapted for her disability, was held to have her Article 8 rights violated when the health authority went back on its promise not to move her. The enforced move was considered emotionally devastating and anti-therapeutic and was not justified under the considerations in Article 8(2).

39
Q

What is the margin of appreciation in relation to Article 8 of the ECHR?

A

States have a particularly wide margin of appreciation in matters relating to the allocation of resources. This means that the ECtHR allows states to have discretion in making decisions regarding the allocation of resources, as long as the circumstances are not compelling enough to amount to a violation of Article 8.

40
Q

What must be demonstrated by a contracting state to justify an interference with a person’s rights under Article 8?

A

A contracting state must demonstrate that it is interfering with a person’s rights under Article 8 in pursuance of a legitimate aim. The state must also show that the interference is in accordance with the law, meaning there must be a legal basis justifying the interference.

41
Q

What are some possible justifications for interference with Article 8?

A

There are a number of possible justifications for interference with Article 8, including national security, the prevention of crime, and the protection of health and morality. These are known as legitimate aims.

42
Q

How does the ECtHR approach cases involving the right to die in relation to Article 8 of the ECHR?

A

In cases involving the right to die, the ECtHR takes a cautious approach. The court respects Parliament’s assessment and considers that the issue of incompatibility involves considerations that Parliament is inherently better qualified than the courts to assess. Therefore, the court does not intervene unless there are compelling circumstances that would amount to a violation of Article 8.

43
Q

What is a ‘super-injunction’?

A

A ‘super-injunction’ refers to an order that restrains the publication of material and also restricts information about the content of the order itself, including the fact that an order was made.

44
Q

What was the finding of the Court of Appeal in the case of R (M) v Hampshire Constabulary regarding unannounced visits for monitoring purposes?

A

In the case of R (M) v Hampshire Constabulary, the Court of Appeal rejected the argument that the practice of police officers visiting the homes of registered sex offenders for monitoring purposes was a breach of Article 8. The court considered that any interference with the applicant’s Article 8 rights was justified, as the policy was designed to protect the rights of vulnerable people and was conducted proportionately.

45
Q

What are some other ways to restrict freedom of expression?

A

Apart from injunctions, other types of restraints on freedom of expression include the confiscation of property, copyright laws, decisions to refuse immigration entry, and limitations on election expenditure.

46
Q

What was the decision made by the ECtHR in relation to Princess Caroline of Monaco?

A

In its decision, the ECtHR considered the ambit of protection afforded by article 8. It held that the publication of photographs showing Princess Caroline of Monaco going about her daily life in public places, which included her shopping, leaving a restaurant, practicing sport, and out walking, depicted her in activities which it considered to be of a purely private nature, thereby engaging article 8.

47
Q

What case provided further guidance on the balancing exercise between article 8 and article 10?

A

Von Hannover v Germany (No. 2) [2012] 55 EHRR 15 provided further guidance on the balancing exercise between article 8 (right to respect for private life) and article 10 (freedom of expression).

48
Q

How does Article 8 of the ECHR relate to sexual orientation?

A

Article 8 of the ECHR is relevant to discussions of privacy and respect for private life in relation to sexual orientation. In cases such as Dudgeon v UK, the ECtHR has held that criminal prohibitions on gay conduct between consenting adults in private constitute an interference with the right to respect for private life.

49
Q

What is the significance of articles 8 and 10 in the Von Hannover case?

A

In the Von Hannover case, the court stated that articles 8 and 10 are of equal value and set out relevant criteria that contracting states should consider when balancing the rights.

50
Q

What was the argument in the Mosley v UK case regarding article 8 of the European Convention on Human Rights?

A

In the Mosley v UK case, the applicant argued that article 8 imposed a positive obligation on contracting states to enact a legal measure that required individuals to receive notification from media organizations in advance of them publishing information that interfered with their private lives. However, the ECtHR rejected this argument, stating that such a move would unduly restrict the media’s freedom of expression under article 10.

51
Q

What are the qualifications for the right to freedom of expression under article 10?

A

Although article 10 protects freedom of expression, it is qualified. A state may be able to justify an interference with article 10 if the interference is prescribed by law, pursues one of the legitimate aims set out in article 10(2), and is proportionate. The protection of the reputation or rights of others is one of the most common countervailing interests that has arisen from case law.

52
Q

What criteria did the Grand Chamber in Strasbourg set out in Von Hannover (2) for balancing the rights under articles 8 and 10?

A

The Grand Chamber in Von Hannover (2) set out five relevant criteria for balancing the rights under articles 8 and 10: 1) Whether the information 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) The circumstances in which the photos were taken, in particular whether the person photographed gave their consent.

53
Q

What was the outcome of HRH Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776?

A

In HRH Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776, the court concluded that the claimant had a ‘reasonable expectation of privacy’ in respect of his journal, and that there was a strong public interest in preserving its confidentiality.

54
Q

What did the House of Lords state regarding the cause of action in Wainwright v Home Office?

A

In Wainwright v Home Office, the House of Lords held that there was no general common law right to privacy in domestic law. However, domestic law has traditionally offered some degree of protection for invasions of privacy committed by private individuals, such as through the action of breach of confidence.

55
Q

What elements must be satisfied to bring an action for breach of confidence?

A

To bring an action for breach of confidence, three elements must be satisfied: (a) the information must have the necessary quality of confidence about it, (b) the information must have been imparted in circumstances importing an obligation of confidence, and (c) there must have been an unauthorized use of the information. However, if the publication of the information is justified as being in the public interest, it may still be lawful.

56
Q

What did the Court of Appeal state in ETK v News Group Newspapers [2011] EWCA Civ 439 regarding the impact of publication on the lives of children?

A

In ETK v News Group Newspapers [2011] EWCA Civ 439, the Court of Appeal stated that the potentially adverse impact of publication of a parent’s misdeeds upon the lives of his children could enhance the claimant’s case for an injunction.

57
Q

What is required for a private party to invoke a Convention right against another private party?

A

If a private party wishes to invoke a Convention right against another private party, there must be a pre-existing cause of action against the other private party upon which to ‘hang’ the Convention right. A commonplace cause of action which results in the engagement of article 8 is the tort of the misuse of private information (Campbell).

58
Q

What are the two elements necessary for determining whether there has been misuse of private information?

A

The two elements necessary for determining whether there has been misuse of private information, as developed under the Human Rights Act, 1998, are: (a) whether article 8 is engaged, which depends on whether the applicant has a reasonable expectation of privacy, and (b) if article 8 is engaged, conducting a balancing exercise between the competing rights in articles 8 and 10 and considering whether the publication was necessary.

59
Q

What significant points were made by the Supreme Court in PJS v News Group Newspapers Ltd [2016] UKSC 26?

A

In PJS v News Group Newspapers Ltd [2016] UKSC 26, the Supreme Court made significant points about the use of injunctions to restrain information being disclosed about the private and sexual lives of celebrities. The court emphasized that there is no public interest in the disclosure or publication of purely private sexual encounters, even if they involve adultery or more than one person at the same time.

60
Q

What did Lord Hope suggest regarding the test for a reasonable expectation of privacy?

A

Lord Hope suggested that the test for a reasonable expectation of privacy is to first ask whether the information is obviously private. If it is, the person affected can reasonably expect their privacy to be respected. If the information is not obviously private, the courts will then consider whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, would find the disclosure offensive.

61
Q

Which one of the following statements is incorrect?

In the case of Evans v UK, the applicant argued that the state had failed in its positive obligation to enact legislation to protect her right to start a family.

In Dudgeon v UK, the ECtHR clarified that a person’s private life under article 8 includes their sexuality.

In Steinfeld & Keidan the Supreme court held that the ban on opposite-sex couples entering into a civil partnership was an unjustified restriction on their article 8 rights.

In the case of Quila, the Supreme Court found that the government’s policy was a proportionate response to the perceived problem of forced marriages.

In Gillan and Quinton v UK, stop and search powers were found not to be in accordance with the law, a situation which had enabled violations of article 8.

A

In the case of Quila, the Supreme Court found that the government’s policy was a proportionate response to the perceived problem of forced marriages.

Correct. The court assessed the evidence and did not think the policy on age was proportionate – it did not represent the least intrusive means of achieving a legitimate policy aim.

62
Q

Whichone of the following statements is incorrect?

Even though the word used in the European Convention is ‘correspondence’ the concept covers other forms of more modern communication as well.

In the case of Daly, thecourt considered that the practice of opening letters to prisoners while they were not present inhibited free and fair communication between prisoners and their legal advisors.

Correspondence between prisoners and their legal advisors may engage article 8 in rare circumstances but the courts are not generally sympathetic to prisoners – the general attitude is that they have to put up with a certain amount of interference as part of their sentence.

In the case of Malone v UK, the court held that there had been a violation of article 8 not because the measures taken by the police were necessarily disproportionate but because of the lack of clear guidelines in the UK for the interception of communications by the police.

The monitoring of internet usage was seen to engage article 8 by the court in Copland v UK.

A

Correspondence between prisoners and their legal advisors may engage article 8 in rare circumstances but the courts are not generally sympathetic to prisoners – the general attitude is that they have to put up with a certain amount of interference as part of their sentence.

Correct. Prisoners do of course lose some rights as a result of their sentence, notably their liberty, but the courts tend to accentuate their rights to unimpeded legal advice to compensate for this, as this is one of their last remaining rights.

63
Q

Which one of the following statements is incorrect?

In McDonald v UK, the public authority which rejected her application for an improved care package was seen by the court to be responding to the legitimate policy aim of seeking to balance economic resources.

In Secretary of State for the Home Department v AP the Supreme Court held that the imposition of a control order on a terrorist suspect, which involved a 16 hour per day curfew and being moved 150 miles from his home represented a violation of his article 8 rights.

In the case of R (T and others) v Chief Constable of Greater Manchester, the statutory scheme which allowed the police to hold information on record in relation to very minor offences for a significant amount of time was declared to be incompatible with article 8.

There are a number of policy areas which can potentially justify the state interfering with article 8 rights, known as legitimate aims by the courts.

In the case of S and Marper v UK, the ECtHR endorsed the approach of the domestic court by finding that the police’s DNA retention policy was a proportionate way to achieve the prevention of disorder or crime.

A

In the case of S and Marper v UK, the ECtHR endorsed the approach of the domestic court by finding that the police’s DNA retention policy was a proportionate way to achieve the prevention of disorder or crime.

64
Q

True or false: Freedom of expression under article 10 is a narrowly defined right that covers political opinion and journalistic freedom only.

A

False

What constitutes ‘freedom of expression’ and the contexts in which the right operates is not defined in the article, nor has it been precisely defined by the ECtHR. Whilst the areas identified in the answer do apply to article 10, they are not exclusive. Article 10 has been held to have broad application in terms of the forms of expression covered and the areas in which the right operates. See, for example, the case of Handyside v UK.

65
Q

True or false: The right to freedom of expression under article 10 has been interpreted to include a right, in some circumstances, to receive information.

A

True

66
Q

What does the tort of misuse of private information involve?

A

The tort of misuse of private information will involve the courts considering the article 8 rights and the article 10 rights of the respective parties.

67
Q

Tort for misuse of private information?

A

In determining whether there has been a misuse of information the court will consider whether the applicant had a reasonable expectation of privacy and if so, undertake a balancing exercise between the parties’ competing article 8 and article 10 rights.

68
Q

Test for reasonable expectation of privacy?

A

test for whether there is a reasonable expectation of privacy is firstly to ask whether the information is obviously private. If this is the case, the situation will be one in which the person affected can reasonably expect his privacy to be respected.
If, however, the information is not obviously private, the courts will then consider whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, would find the disclosure offensive. (Lord Nicholls, however, dissented on using the offensiveness test in his judgment.)

69
Q

What are legitimate aims?

A

Qualifications must be justified by reference to the aims specified for each right. The principle is that the interests of society may justify restrictions on the rights of individuals.
The following are frequently specified in the Convention as legitimate state aims:
(a) The interests of national security, public safety or the economic well-being of the country (eg Article 8)
(b) The prevention of disorder or crime (eg Articles 8 and 10)
(c) The protection of health or morals (eg Articles 8 and 10)
(d) The protection of the rights or freedoms of others (eg Article 8)
(e) The prevention or disclosure of information received in confidence (eg Article 10)
(f) Maintaining the authority and impartiality of the judiciary (eg Article 10)