Public Law - HRA III (Articles 8 & 10)

What is Article 8 of the HRA?

right to respect for private and family life, home, and correspondence

- a qualified right

When is interference allowed with Art 8? (key point)

- only where the interference is 'in accordance with the law'

- is pursuant to one of the legitimate aims set out in 8(2)

- and is 'necessary in a democratic society'

What is included as private life within Article 8?

Wide interpretation (living instrument doctrine)

- Private life includes physical/psychological integrity (punishment could affect this eg)

- Covers personal information and identity

- Includes right to develop relationships with others

Does reducing care provision for a disabled person, resulting in reduction in dignity, engage Article 8? (McDonald v UK)

- states have a particularly wide margin of appreciation in matters relating to allocation of resources

- did not consider that the circumstances were compelling enough to amount to a violation of article 8.

How does right to die engage Article 8? (Nicklinson)

- judges were wary to engage in this debate, and left it to Parliament

How does prohibition on homosexuality engage Article 8? (Dudgeon v UK)

criminal prohibition on gay conduct between consenting adults in private, existing at that time in Northern Ireland was an interference with right to respect for private life (inc sex life)

Do superficial searches similar to airport security violate Article 8?

- ECtHR held Article 8 was violated

- There were insufficient safeguards in domestic legislation to protect the individual from interference with rights

- therefore stop and search powers weren't 'in accordance with law'

What did Khan v UK establish about police surveillance?

- Police surveillance through hidden listening devices engaged Article 8

- Surveillance measures must have clear statutory framework

- Lack of legal framework made interference unlawful

What was established in R (Wood) v Commissioner of Police regarding taking photographs of peaceful protestors?

- Police retention of peaceful protestor photos engaged Article 8

- retention beyond reasonable time period was disproportionate when subject had not committed any crime

How is 'family life' interpreted under Article 8?

- Broad concept beyond traditional family unit, inc. relationships outside marriage (Kroon v Netherlands)

- Focuses on normal development of family relationships and the ability to spend time together

How does Article 8 apply to immigration cases?

- No absolute right to reside in specific country

- State actions disrupting family units engage Article 8

- Balance between state interests and family rights required

What was the significance of Quila v Secretary of State? (marriage visas case)

- Ban on under-21 marriage visas deemed disproportionate

- Impacted more unforced than forced marriages

- Failed least intrusive means test

What did Evans v UK establish about competing family rights? (embryo storage case)

- Equal weight given to both parties' reproductive rights

- UK legislation deemed appropriately balanced

What was decided in Steinfeld & Keidan? (heterosexual civil partnership case)

- Civil Partnership Act restriction on opposite-sex couples violated Articles 14 and 8

- Led to declaration of incompatibility

- Highlighted discrimination in civil partnership access

What was the outcome of Re Northern Ireland Human Rights Commission re Article 8 and abortion law?

- Supreme Court found NI abortion law incompatible with Article 8

- Specifically regarding cases of fatal fetal abnormality, rape, and incest

- No formal declaration due to NIHRC standing issues

What does Article 8 protect regarding home life?

- Not a right to a home, but to respect for existing living situation

- Protection from invasion and intrusion into the home

- Includes maintaining the situation to which a person has become accustomed.

- And monitoring of the home by authorities

What was established in R (Coughlan) regarding home rights? (broken promise not to move disable resident)

- Health authority violated Article 8 by moving disabled resident

- Breaking promise not to move resident was unlawful

- Emotional impact of move was considered significant

- was not justified under any of the conditions in Art 8(2) eg necessary in a democratic society

How can monitoring homes be compliant with Article 8?

- Police visits to registered sex offenders permitted if proportionate to aim of protecting others

- Unannounced visits acceptable if not overly frequent

- Must balance monitoring needs with privacy rights

- The ability of police to seek a warrant was not interference with Article 8 rights, as it would not always be granted

What did Hatton v UK establish about environmental interference? (noise levels around Heathrow)

- Government has positive obligation to manage environmental nuisances, even where it is not responsible for their causes

- Noise levels from Heathrow can engage Article 8 rights

- However, states have margin of appreciation in managing these issues

How is correspondence protected under Article 8?

- Requires legal framework for any interference

- protects emails, texts, and phone calls

- and communications for business purposes

- monitoring of internet usage by employer held to engage Article 8

What are the rules around prisoners' correspondences?

- High level of protection for communication with legal advisors

- Letters can only be opened with reasonable cause

- Reading of mail only in exceptional circumstances

- Must have suitable safeguards when opening mail

What requirements must be met for interference to be 'in accordance with law'?

- Must have clear legal basis

- Law must be accessible and precise

- People must be able to foresee consequences

- No unfettered executive discretion allowed

Can national security be a legitimate aim and therefore excepted from Article 8?

- States given wide margin of appreciation to interfere with Art 8 rights on the basis of national security concerns

- But claim of national security concern will not be automatically accepted

- Control orders can engage Article 8 protection

Can the economic wellbeing of a company be a legitimate aim and therefore excepted from Article 8? (Da Silva v Netherlands; McDonald)

- Court rejected state's claim that applicant's interest in staying near her daughter was outweighed by the interests of the economic well-being of the country, as she worked illegally.

- however, in McDonald, the need for the local authority to balance its budget and apportion public resources as fairly as possible was seen as pursuing this legitimate aim.

What principles emerged from DNA retention cases?

- Blanket retention policies may be disproportionate

- Must consider gravity of suspected offenses

- Need to respect presumption of innocence

Can data retention interfering with Art 8 be justified on the basis of legitimate aim of preventing crime and disorder?

Yes, as long as measures are proportionate to achieving this aim

How are strip searches treated under Article 8?

- strip searches to visitors to a prison engaged Article 8

- and pursued the legitimate aim of prevention of crime and protecting the health of the prisoners

- but in this case they were not proportionate to that aim, as they were intimate and poorly regulated

What is Article 10 of the ECHR and what does it protect?

Protects freedom of expression in public and private (a qualified right)

- Right to hold opinions

- Right to receive information and ideas

- Right to impart information without interference from public authorities

What are the three requirements for restricting Article 10 rights? (as a qualified right)

1. Must be prescribed by law

2. And must pursue one or more legitimate aims under Article 10(2)

3. And must be necessary in a democratic society (proportionate)

What forms of expression are protected under Article 10?

- expression = words, pictures, images, and actions intended to express an idea or to present information

- Political opinion

- Journalistic freedom

- Artistic expression

- Commercial information (restrictions on advertising)

- (Political and journalistic expression typically receive stronger protection)

Did a policy requiring journalists visiting criminals to give an undertaking that the contents of any interviews would not be used in a professional capacity breach principle of free speech?

Yes (although case relied on common law free speech, not Article 10)

How does article 10 protect right to be provided with information? (caselaw)

- an absolute and unqualified injunction, prohibiting the dissemination in Ireland of information regarding abortion services limited free speech

- holding the inquiry into Harold Shipman in private contravened Article 10

Is there a positive duty of disclosure on public authorities through Article 10?

No, does not create a general right of 'freedom to information'

What was established in the Spycatcher case?

- Injunctions on the contents of a book before US publication were proportionate to the aim of maintaining national security

- Continuing injunctions after US publication were disproportionate

Can Article 10 be limited for the aim of prevention of disorder or crime?

- a reasonable apprehension of a sufficiently imminent breach of the peace was required before any form of preventive action was permissible - police escorting coaches of protestors back to London was not proportionate and had been premature

- removal of tent protests in Westminster was allowed, the right of protest was intact, just not the right to do so in tents

Can Article 10 be limited for the aim of protection of health or morals?

- wide margin of appreciation given to states to determine their own code of morality, especially when religion is involved

- seizure and destruction of the Little Red Schoolbook was not an Article 10 violation

- criminal conviction for publishing graphic sexual/religious images in a gallery was not a breach of Article 10 - proportionate to the aim of protecting public morals

Can Article 10 be limited for the aim of protection of the reputation of others?

- journalist's conviction for defamation of the Austrian Chancellor was disproportionate response to protecting this aim (Lingens)

- had the effect of criminalising statements of opinion and imposed an impossible burden on the author to justify them

- limits on acceptable criticism are wider for politicians than for ordinary citizens

What did the Prolife Alliance v BBC case establish? (refusal to broadcast party political broadcast due to graphic abortion content)

- Article 10 protects both substance and manner (eg graphic-ness) of expression

- Restrictions on political speech require rigorous examination

- Graphic content can be restricted even if political message is protected

What are the key principles from Otto-Preminger-Institut v Austria? (seizure of allegedly blasphemous film)

- Protecting religious rights under Article 9 (freedom of religion) was legitimate aim for purposes of limiting Article 10

- Wide margin of appreciation for religious matters as there is no uniform conception across Europe of the significance of religion in society

- Local context therefore relevant (high Catholic population in Tyrol)

What was established in Lee v Ashers Baking Group Ltd? (refusing to ice cake stating 'support gay marriage')

- Cannot compel expression against religious beliefs

SC distinguished between:

- discrimination based on sexual orientation (not allowed)

- refusal to make specific statement (allowed)

Will limiting racist speech be a breach of Art 10 rights?

- comedian convicted for causing 'public insults towards a group of persons based on religious or racial grounds

- conviction was not a breach of Art 10 rights, freedom of expression could not be upheld for ends which were incompatible with the spirit of the ECHR.

Will reporting on racist views be protected via Article 10?

- conviction of a journalist for interviewing 3 far-right group members on TV while rejecting their reviews was disproportionate

What are the different types of restraints on freedom of expression?

1. Prior restraint:

a) Requires very high justification

b) Includes injunctions and super-injunctions

2. Property confiscation

3. Copyright laws

4. Immigration restrictions

5. Election spending limits

What is the purpose of the civil remedy of breach of confidence?

- To prevent disclosure of confidential information

- it can supplement the Official Secrets Act and be justified by aim of national security.

Does conviction for refusing to reveal sources violate Article 10?

- journalist convicted for refusing to reveal his source, but the ECtHR ruled this violated Article 10 (Goodwin)

- could only compel revealing of sources if there was overwhelming public interest

- (eg selling Ian Brady's medical records in Ashworth Security Hospital, to avoid further selling)

Is maintaining the authority and impartiality of the judiciary a legitimate aim that justifies limiting Article 10?

Yes, can limit information about ongoing cases etc for this aim

What are examples of restraints on freedom of expression besides injunctions?

- injunctions (must have high level of justification if happening before speech occurs)

- confiscation of property

- copyright laws

- immigration entry refusals

- limits on election expenditure

When can Article 10 be argued?

- can be pled by those making a claim against another

- can also be pled in defence (eg when journalists are attempting to obtain the protection of article 10 if they have been ordered to disclose one of their confidential sources)

Does Article 8 require mandatory pre-notification by the media before publishing private information about an individual?

No, as mandatory pre-notification would unduly restrict press freedom under Article 10.

What is the primary operation of the HRA 1998? (vertical/horizontal)

- Primarily operates in a vertical direction = protection for individuals against public authorities

- But can can influence legal claims between private individuals and organizations because courts are always under a duty to heed the Convention (indirect horizontal effect)

How does enforcing a covention right against another individual work?

- HRA did not create a new, free-standing cause of action between private individuals.

- If a private party wishes to invoke a Convention right, there must be a pre-existing cause of action upon which to 'hang' the Convention right.

Is there a common law right to privacy?

No

What are the three elements required in Coco v AN Clark for an action of breach of confidence?

- Information must have necessary quality of confidence

- Information must be imparted in circumstances importing obligation of confidence

- There must be unauthorized use of information

Note: Publication can still be lawful if the above criteria are satisfied, if justified as being in public interest

What was established in Campbell v MGN regarding the HRA?

- courts must always act compatibly with both parties' Convention rights

- No need for initial relationship of confidence between the parties

- Created new cause of action: 'misuse of private information'

What are the two elements for determining if there has been misuse of private information? (established in Campbell)

1. Whether Article 8 is engaged in the first place depends solely on whether the applicant has a 'reasonable expectation of privacy'

2. If Article 8 is engaged, the next stage of the inquiry is to conduct a balancing exercise between the competing rights in articles 8 and 10 and consider whether the publication was necessary.

How is 'reasonable expectation of privacy' determined according to Campbell?

- First ask if information is obviously private

- If obviously private, person can expect privacy to be respected

- If not obviously private, consider if reasonable person would find disclosure offensive

What additional guidance was given in Douglas v Hello! regarding private information?

- Must include information personal to the possessor

- Person does not intend it to be imparted to general public

What are the key principles regarding privacy of information in the public domain?

- No reasonable expectation of privacy for public domain information

- Person can waive privacy by placing information in public domain

- Revealing some aspects doesn't open all private life to scrutiny

- Public place paparazzi photos may still be private (Von Hannover v Germany)

What were the key findings in Axon v Ministry of Defence? (tabloid disclosure about naval commander being fired)

- No reasonable expectation of privacy due to public function

- Effect of his behaviour on ship's fighting effectiveness considered relevant

- The officers on the ship, who had complained about his bullying, knew or would have been able to have inferred why he had been removed from the ship.

Will courts take into account the fact that claimant in privacy case is a child?

Yes, will pay special attention to this

What was established in Re JR38's Application? (newspapers showing teenager involved in rioting)

- No reasonable expectation of privacy for riot involvement photos

- Photos from CCTV used in police campaign to identify individuals

- Minority view considered Article 8 engaged due to age, but found interference still justified in circumstances

What are the key principles regarding balancing Articles 8 and 10?

- Neither article has precedence over the other

- Must consider justifications for restricting each right

- Proportionality test must be applied to each

- Media must justify any interference with privacy rights - but person claiming privacy must justify restricting press freedom

What guidance did Von Hannover v Germany (No. 1) provide about the balancing exercise?

- Decisive factor is contribution to debate of general interest

- States may have positive obligations to protect against privacy intrusions - public figures deserve protection in private life activities

- German courts' approach of tolerating press intrusion for public figures was wrong

What criteria were established in Von Hannover v Germany (No. 2)?

- Whether information contributes to debate of general interest

- How well-known the person is and subject matter of report

- Prior conduct of individual concerned

- Form and consequences of publication

- Circumstances of photo-taking and whether consent given

What were the key findings about privacy of diaries Prince of Wales v Associated Newspapers?

- Private diaries can have reasonable expectation of privacy

- Strong public interest in preserving confidentiality

- Political nature alone doesn't remove confidentiality

- Balance favored privacy over publication

What principles emerged from Mosley v News Group? (Nazi sex party)

- Sexual activities have reasonable expectation of privacy

- Public interest required for privacy invasion - Nazi theme would have justified publication if proven

- Severity of allegations and impact on individual relevant to assessment

What key issues arose in the Trafigura case? (super-injunction)

- Demonstrated use of super-injunctions

- Prevented publication of internal report showing that disposal of oil waste would cause injury to local people via injunction, and banned discussion of injunction's existence

- Question on the matter was listed on the Order Paper and reported on in the paper

- Rule of law requires open reporting of parliament

What developments occurred in injunction cases?

- ETK case - claim for injunction may be enhanced to protect children from knowledge of parent's misdeeds

- Mosley v UK - rejected need for pre-publication notification

What did PJS v News Group Newspapers establish about privacy and celebrities' sex lives?

PJS established key principles on private sexual matters:

- No inherent public interest in private sexual encounters

- Disclosure constitutes privacy invasion tort

- Repeated disclosure can be separate tort

- Internet publication doesn't necessarily defeat injunction purpose