Human Rights - Article 8

Question 1

under article 8 everyone has the right to…

Answer 1

respect for their private and family life, home and correspondance

Question 2

what kind of right is article 8?

Answer 2

a qualified right - must be balanced against the rest of the community

Question 3

what case example can be used for ‘article 8’?

Answer 3

sheffield v horsham - UK refused to recognise legally, the new sexual identities of the applicants who had gender reassignment surgery. ECtHR did not find a breach but critical of UK for failing to keep this law under review.

Question 4

what can private life include?

Answer 4

name, gender, social identity, sexual orientation, physical identity and personal development

Question 5

what case examples can be used for ‘private life’?

Answer 5

BB v UK - ‘any laws which treat homosexuals less favourably than heterosexuals cannot be justified’
Goodwin v UK - ‘barriers held on a transgendered person violated their rights to a private life’

Question 6

what does ‘family life’ include?

Answer 6

children & grandchildren, adoptive relationships, family that continues post-divorce, cohabiting heterosexual couples, foster relationships and same-sex relationships

Question 7

what does ‘home life’ include?

Answer 7

access to their home and right to live in it and peaceful enjoyment of their property
this does not stretch to a general duty to house the homeless or guarantee a right to a home

Question 8

what case examples can be used for ‘home life’?

Answer 8

McDonald v McDonald - C’s parents bought a mortgaged property for her to live in, but ran into financial difficulty. Mortgage company wished to evict her. Article 8 does not apply.

Niemietz v Germany - police searched a lawyers office to try identify a suspect. the search was part of a ‘home’ and the lawyers private life so it was held that private life must also be included at work

Question 9

what does ‘correspondance’ include?

Answer 9

letters, calls, emails, faxes, texts etc

Question 10

what case example can be used for ‘correspondence’?

Answer 10

Barbulescu v Romania - C used a business Yahoo account for personal messages. he was fired.
article 8 rights had been engaged but employer did not find the right balance between work life and right to a private life.

Question 11

what are the 3 restrictions on article 8?

Answer 11

1. regulatory investigatory powers act 2000
2. investigatory powers act 2016
3. duty of confidentiality (common law)

Question 12

what does Regulation Investigatory Powers Act 2000 cover?

Answer 12

surveillance e.g bugs or video

Question 13

S32(3) RIPA 2000 =

Answer 13

authorised power for intrusive surveillance in three ways:
a) interests of national security
b) prevention of serious crime
c) interests of UK economic well-being

Question 14

what case example can be used for ‘RIPA 2000’?

Answer 14

Halford v UK - Halfords calls interrupted by police regarding a discrimination claim that was being pursued in an employment tribunal. breach of article 8

Question 15

what does Investigatory Powers Act 2016 state?

Answer 15

1. approval needs to be from a warrant from the judicial commissioner as well as secretary of state
2. a commissioner is appointed to check the powers are being used correctly

Question 16

duty of confidentiality:

Answer 16

information given will give rise to a duty of confidentiality e.g a doctor

Question 17

tests for duty of confidentiality:

Answer 17

1. info must have a quality of confidence
2. info was given in confidence
3. unauthorised use of the information
4. C suffered a detriment from breach

Question 18

defences to duty of confidentiality:

Answer 18

1. cannot be trivial/minor
2. cannot be already in public domain
3. if it is in the public interest, it will be published

Question 19

what case examples can be used for ‘duty of confidentiality’?

Answer 19

Campbell - model photographed exiting a rehab meeting w headlines ‘Naomi: I’m a drug addict’. Breach of Art 8.

Douglas v Hello - celebrity couple sold rights to wedding photos to OK magazine. unauthorised photographer took photos in wedding they were added to the spread. breach of art 8.

Question 20

positive evaluative points for art 8:

Answer 20

same-sex couples and cohabiting heterosexual couples included in family/surveillance not for the ordinary person

Question 21

negative evaluative points for art 8:

Answer 21

live with parents - no right to home life as you don’t own the house
proportionality is subjective
surveillance could go against moral values 8(1) is trying to protect
injunctions don’t stop reputations being ruined
Sheffield v Horsham is only advisory not real law