Public 9 Article 8 and 10

Article 8

The state must respect each person's family and private, their home and correspondence

Article 8 as a Qualified Right (8(2))

The state can interfere with the article if:

* In accordance with the law
* In pursuit of a legitimate aim
* Necessary in a democratic society

Handyside v UK

Any interference with article 8 will be necessary in a democratic society if it answers a pressing social need and is proportionate

Costell-Roberts v UK

Private life covers a person’s physical and moral integrity

Von Hannover v Germany

Article 8 extends to aspects relating to personal identity

R (Nicklinson) v Ministry of Justice

The courts will avoid dealing with the issue of assisted dying and Article 8 as Parliament is better qualified to assess the situation

Dudgeon v UK

Sexual orientation is included in Article 8 and cannot be criminalised

Bellinger v Bellinger

Lack of recognition of gender reassignment will engage Article 8

Gillan and Quinton v UK

Stop and search powers violated article 8 as there were insufficient safeguards in the law meaning that powers could not be used in accordance with the law

Khan v UK

Lack of legislation on monitoring of a private space meant that the police had violated article 8

R (Wood) v Commissioner of Police of the Metropolis

Retention of photos from monitoring after the defendant had been acquitted was held to be disproportionate and a violation of article 8

Kroon v Netherlands

Family life in article 8 is not restricted to relationships dependant on marriage

Family Life and Immigration Cases

Decisions by states to expel a person from a country or refuse to admit someone may result in the separation of spouses or partners, or parents and children and may engage article 8

Abdulaziz, Cabales and Balkandali v UK

Article 8 was violated by not allowing the spouses of women who had legally settled in the UK to also settle

R (Coughlan) v N and E Devon Health Authority

Article 8 entitles the person to have a home to which they are accustomed

R (M) v Hampshire Constabulary

Monitoring the home of a sex offender was not a violation of article 8 as it was prescribed by law and proportionate in achieving a legitimate aim of protecting vulnerable people

Hatton v UK

The right to respect for home includes not just a physical area, but other interferences such as noise, smell or leaking of waste

Correspondence and Article 8

Extends to letters, emails, text messages, and other modern forms of communication

Malone v UK

Interfering with postal and telephone communications to prevent and detect crime was a violation as it was not in accordance with the law

Campbell v UK

Prison authorities can open, but may not read, a letter between lawyer and prisoner if there is reasonable cause to believe there is an illicit enclosure

Legitimate Aims under Article 8(2)

* National security. 
* Public safety or economic well-being 
* Prevention of disorder or crime. 
* Protection of health or morals. 
* Protection of the rights and freedoms of others. 

SoS for the Home Department v AP

Supreme Court held that the imposition of a 16-hour curfew and the requirement that the appellant had to live 150 miles away from his family was a violation of his right to family life and not relevant to national security

Da Silva v Netherlands

Article 8 should be balanced with economic well-being and fall in favour of preserving family ties

S and Marper v UK

The blanket and indiscriminate nature of DNA retention policy was seen as disproportionate to the prevention of disorder of crime

Wainwright v UK

Strip searches of prisoner visitors was not proportionate to protecting the health of prisoners through the prevention of crime

Copland v UK

A public employer may monitor calls, internet emails to ensure that publicly funded facilities were not abused, however there was a violation as there was no basis in law

Article 10

Covers the freedom of expression, whether in public or private

Bowman v UK

Political opinion is covered by Article 10

Goodwin v UK

Journalistic Opinion is covered by Article 10

Muller v Switzerland

Artistic expression is covered by Article 10

R v SoS for the Home Department, ex parte Simms

freedom of speech is the lifeblood of democracy

Open Door Counselling and Dublin Well Woman Centre v Ireland

Article 10 provides a right to provide and be provided with information

Kennedy v The Charity Commission

there was no free-standing positive duty of disclosure imposed by Article 10 on public bodies

Article 10 as a Qualified Right

Can be interfered with:

* If prescribed by law
* In pursuit of a legitimate aim
* If proportionate

Brind and McLaughlin v UK

Limitations of freedom of expression can be permitted for national security

R (Gallastegui) v Westminster City Council

Article 10 can be restricted through freedom of protest provided other protests can be made

Muller v Switzerland

Regarding morality and Article 10, there is a wide margin of appreciation

Lingens v Austria

Politicians must have a greater degree of tolerance to criticism under Article 10

Prolife Alliance v BBC

Article 10 can be invoked to protect the rights of others and what they may be exposed to in the expression of others

Otto-Preminger-Institute v Austria

Freedom of expression that is gratuitously offensive, especially towards religion, may be restricted

M’Bala M’Bala v France

Racist and antisemitic marks may be restricted under Article 10

Goodwin v UK

A journalist does not have to disclose their source under Article 10

Super-Injunction

order restraining publication of material and additionally restraining information about the content of the order itself

Indirect Horizontal Effect of Article 8 and 10

The courts must act to protect private parties from breaching these rights outside of their vertical direction

Campbell v MGN

The court established a cause of action known as misuse of private information

Requirements for Misuse of Private Information

* Reasonable expectation of privacy
* Balancing exercise between Articles 8 and 10

Reasonable Expectation of Privacy

Was the information obviously private? Would the subject of the disclosure find the disclosure offensive?

Browne v Associated Newspapers Ltd

There will be no reasonable expectation of privacy in respect of information that is already in the public domain

McKennit v Ash

A person can choose to waive their reasonable expectation of privacy by placing the information in the public domain

Murray

Reasonable expectation of privacy is a broad concept and requires consideration of all the circumstances

Axon v Ministry of Defence

Performing a very public function will not give a reasonable expectation of privacy

Von Hannover v Germany (No 2)

Factors to consider when balancing article 8 and 10 rights:

* 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.