Human Rights - Article 8 Flashcards
DEFINITION
The right to respect for private life, family life, home and correspondence. There shall be no interference by a public authority with this right except those in accordance with the law which are necessary in a democratic society in the interests of national security, public safety, the economic well-being of the country, for the prevention of crime or disorder, for the protection of health or morals or for the protections of rights and freedoms of others
Definition explanation + Cases
- ‘Respect’ - should take positive steps to protect rather than restrict
- ‘Everyone’ - includes individuals and businesses
(Klass v Germany, Niemitz v Germany)
8(1) Private Life + cases
- (Peck v UK) - Very broad, no exhaustive definition
- Doesn’t guarantee a right to privacy but does cover privacy for things set out in;
- (Pretty v UK) like your name/gender identity/sexual orientation etc, including: Photographs (Campbell v MGN), personal data collection (S & Marper v UK), surveillance (Halford v UK) and health records (Axon v Secretary of State for Health)
Private life: Right can be assumed that:
- It is lawful and;
- It is necessary and proportionate
AND - It is:
- In the interest of national
security or; - In the interest of public
safety/economic interests
of the country or; - To prevent
crime/disorder or; - To protect health/morals
or; - To protect rights and
freedoms of others
- In the interest of national
Private Life: Physical, Psychological and Moral Integrity
- Protection from violence
- Reproductive rights
- Forced medical treatment
- Mental illness
- Healthcare
- End-of life issues
- Disability
- Burial
- Environmental issues
- Sexual orientation and sex life
- Professional/business activities
Private life: Privacy
- Image rights and photographs
- Reputation
- Personal data collection/storage
- Confidentiality
- Access to personal information
- Health records
- Data gathering by the state
- Police surveillance
- Stop and search
- Privacy during detention
Private life: Identity and autonomy
- Personal development
- Discovery of origins
- Religious convictions
- Appearance
- Name/identity documents
- Gender identity
- Ethnic identity
- Citizenship status
- Marital/parental status
Right to privacy?
- English law does not statutorily guarantee a right to privacy and article 8 cannot be invoked in private disputes.
- Data Protection Act (1998) – controls how personal information is used by business, organisations, and the government (See also: GDPR)
- Protection from Harassment Act (1997) – Protects citizens by restricting conduct which
alarms or causes a person distress, usually on at
least 2 occasions. - Malicious Communications Act (1998) – Protects citizens by prohibiting communication which conveys a grossly offensive or indecent message, a threat, or false with intent to cause anxiety or distress.
C: Example of where taking and retaining photographs may infringe a right to private life.
Wood v Commissioner of Police for the Metropolis
C: A pre-operative transsexual prisoner was initially denied a transfer to a female prison which contravened her right to private life as it impeded a decision being made by the Gender Identity Clinic to proceed with reassignment surgery
AB v Secretary of State for Justice
C: Two convicted sex offenders were subject to notification requirements informing authorities when they move home or travel abroad. No review system was in place and so these requirements were for life. The lack of a review system was found to contravene a right to private life.
F & Thompson v Secretary of State for the Home Department
8(1) - Family life + cases
- (Johannsen v Norway) Includes children and grandchildren
- (Agyarko Ikuga v Secretary of the State for the Home Department) the state can only interfere with this right when removing a child from the family as the result of care proceedings/immigration issues
- (Gaskin v UK) A8 always extends to legal marriages but not sham marriages, however there is a wide margin of appreciation for child protection cases
Family life: A ‘family’ in this sense can include, but is not limited to:
- Married and unmarried couples
- Relationships between (biological) parents and children
- Legitimate and illegitimate children and parents
- Foster and adoptive parents and children
(Right is for existence of family, not starting one)
‘Home’ and ‘Correspondence’
- Extra cases in folder
Home – The right to enjoy your existing home peacefully
(Novelsky v Ukraine)
Correspondence –
i) The right to uninterrupted and uncensored communication with others
ii) (Barbulescu v Romania) Covers all forms of communication (letters, calls, emails etc)
iii) This right also covers workplace communications
iv) (Golder v UK) Also applies to prisoners
8(2) - Accordance with the Law
Prescribed by law, not arbitrary nor retrospective & exercised by a relevant authority
