OCR A Level Law: Human Rights Law - Article 8

Nature of Article 8

• Article 8 is a qualified right → it can be interfered with by the state.

• Any interference must strike a fair balance between:

  • the individual’s rights

  • the interests of the community.

Article 8(2): Conditions for Lawful Interference

Interference must be:

1. In accordance with the law

2. Pursuing a legitimate aim

3. Necessary in a democratic society

Legitimate aims include:

• National security

• Public safety / economic wellbeing

• Prevention of crime or disorder

• Protection of health or morals

• Protection of rights and freedoms of others

Proportionality Test (Used by ECtHR)

The ECtHR assesses whether interference is proportionate by asking:

• Does the action pursue a legitimate aim?

• Is it rationally connected to that aim?

• Is it not arbitrary, unfair, or irrational?

• Does it preserve the essence of the right?

• Is it the minimum / least intrusive interference?

• Is there a fair balance between individual and community interests?

Key Aspects of Article 8

Article 8 protects four areas:

1. Private life

2. Family life

3. Home

4. Correspondence

Article 8 is about “respect”, meaning:

• The state has negative obligations (not to interfere unjustifiably)

• AND positive obligations (to actively protect rights)

Sheffield & Horsham v UK (1999)

• No violation, but UK criticised for not updating the law

• Led to:

  • Gender Recognition Act 2004

  • Marriage (Same Gender Couples) Act 2013

Private Life (Very Broad Concept) Includes:

• Physical & psychological integrity

• Sexual identity & gender

• Personal data (DNA, medical records)

• Reputation

• Names

• Personal development & social identity

• Peck v UK (2003)

• private life not capable of exhaustive definition

• Pretty v UK (2002)

• includes dignity, autonomy, identity

• Bensaid v UK (2001)

• mental health is part of private life

Halford v UK (1997)

• Interception of work phone calls = breach of Article 8

Sexual Identity & Gender

• Sexual orientation and gender identity fall within Article 8.

• Convention is a “living instrument” → adapts over time.

Sexual Identity & Gender Cases

• Dudgeon v UK (1981) – criminalising homosexual acts breached Article 8

• Goodwin v UK (2002) – barriers faced by transgender people breached Article 8

• Vallianatos v Greece (2014) – civil partnerships must not be discriminatory

Personal Data & Medical Confidentiality

• Includes DNA, medical records, health information.

Personal Data & Medical Confidentiality Cases

• S & Marper v UK (2009) – DNA retention breached Article 8

• Z v Finland (1997) – disclosure of HIV status disproportionate

• MS v Sweden (1999) – medical confidentiality is vital

• Axon v Secretary of State for Health (2006) - Gillick-competent children have Article 8 rights to confidentiality

Names & Identity

• Names are central to personal identity.

Names & Identity Case

• Johansson v Finland (2002)

  • Parents allowed to name child “Axl Mick”

  • Naming is a private family matter under Article 8

Privacy in UK Law

• No general right to privacy in English law.

• Protection comes from:

  • Article 8

  • Breach of confidence

  • Defamation law

• Article 8 applies only against public authorities, but courts must interpret law compatibly with ECHR.

Media vs Privacy:

• Courts balance Article 8 vs Article 10 (freedom of expression)

Privacy in UK Law

• Campbell v MGN (2004) – photos outside rehab breached Article 8

• PJS v News Group Newspapers (2016) – no automatic priority of Art 8 or 10

Family Life

• Family defined by biological and social reality, not just legal status.

Family Life Included Relationships:

• Parents & children – Marckx v Belgium

• Adoptive families – Pini v Romania

• After divorce – Berrehab v Netherlands

• Cohabiting couples – Kamal v UK

• Same-sex couples – Schalk & Kopf v Austria

• Foster families – X v Switzerland

Immigration & family life:

• Agyarko & Ikuga v SSHD (2015)

  • No breach where family life could continue abroad

Family Life & Children’s Rights:

Yousef v Netherlands (2003)

• Child’s welfare is the paramount consideration

Home

• Protects existing homes, not a right to be housed.

• Applies whether owner or occupier.

Home Key Cases

• Khatun v UK (1998) – occupiers still protected

• Gillow v UK (1986) – refusal to live in own home engaged Article 8

• Connors v UK (2004) – eviction from lawful traveller site engaged Article 8

• McDonald v McDonald (2016) – Article 8 does not apply to private landlords

Correspondence

• Covers all communication:

  • Letters, phone calls, emails, workplace messages

• Applies even in prison – Golder v UK (1975)

Correspondence workplace privacy:

• Bărbulescu v Romania (2016)

  • Employees retain Article 8 rights

  • Employers must strike a fair balance

Surveillance & Interception of Communications - Investigatory Powers Act 2016:

• Expands surveillance powers

• Safeguards include:

  • Double-lock warrants

  • Judicial approval

  • Investigatory Powers Commissioner

Surveillance & Interception of Communications Challenges:

• Tele2 Sverige & Watson (2016) – bulk data retention must be strictly necessary

• Big Brother Watch v UK (2018) – bulk interception breached Article 8