article 8

Article 8

the right to respect for private and family life (qualified right)

interferences and justified exceptions

A8(2)
must fulfil all three criteria:

1. in accordance with the law

2. for a legitimate aim

3. necessary in a democratic society

necessary in a democratic society

measure taken answers a pressing social need and is proportionate to the legitimate aim

Observer and Guardian v UK

legitimate aims

• national security

• the interests of public safety or the economic wellbeing of the country

• the prevention of disorder or crime

• the protection of health or morals

• the protection of the rights and freedoms of others

english law compatibility

• the tort of misuse of private information

• Defamation Act 2013

• Protection from Harassment Act 1997

• Malicious Communications Act 1998

• Data Protection Act 1998

• The Investigatory Powers Act 2016

the tort of misuse of private information

Campbell v MGN

2 stage test

1. reasonable expectation of privacy

2. balancing act: other persons interest considered (eg press or children)

Defamation Act 2013

concerns libel (written) and slander (spoken)

slander requires proof of finacial loss EXCEPT:

1. statement says C has committed criminal offence

2. Words are calculated to disparage the C in his profession

Defences: truth, honest opinion, public interest

Protection from Harassment Act 1997

• 2 criminal offences (course of conduct/ putting V in fear)

• civil and criminal remedies available

The Data Protection Act 1998

controls how personal info is used: strict rules to follow

Gaskin v UK

persons raised in care have a right to access their care records as part of their right to family life

Johannsen v Norway

children’s welfare can override parents right to family life

children can be adopted without contravention

Barbulescu v Romania

employers must warn employees that they will consider IT communications/ usage

Richard v BBC

a suspect under police investigation has a reasonable expectation of privacy, even if the investigation is public knowledge

the public interest was not sufficient to outweigh his right to privacy

Von Hannover v Germany

despite her public status, the ECtHR ruled that the photographs did not contribute to a debate of public interest, so did violate her privacy

4 Protected Interests

1. Private life (integrity, sex and gender, data, reputation)

2. Family life (live with/ access to family)

3. Home (enjoy your home peacefully)

4. Correspondence (all forms of communication covered)

A8 Positive Obligation

protect citizens against arbitrary interference with private and family life, home and correspondence

A8 Negative Obligation

not to interfere with a citizens private and family life

essay considerations

prima facie infringements

in principle, neither A8 nor A10 has priority

whether A8 prevails over A10

private individual? public profile? lapse of time? political debate? obvious aim of D?