Article 8 - Right to respect for Private and Family Life

8.1

Everyone has the right to respect for his private and family life, his home and his correspondence

8.2

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health and morals or for the protection of the rights and freedoms of others

Obligations of the state

The state has a positive obligation and must take positive steps to protect a persons right to respect for their private life. The state has a negative obligation to not interfere with a persons right to respect for their private life.

Qualified right

Article 8 is a qualified right so it may be limited (8.2)

Media in English Law

An injunction preventing publication or access to information is the most sought after remedy
PJS v NGN - neither article 8 or 10 take precedence over the other, courts will consider the facts of each case to decide the outcome
Tort of misuse of private information - Vidal Hall v Google, misuse of a persons private information is a tort, any situation where there is a reasonable expectation that a persons private info will be kept private
Tort of defamation - libel or slander. libel is permanent defamation (written), slander is transient (spoken) Defamation Act requires applicants to show publication of the statement caused/is likely to cause serious harm to their reputation. In businesses this means financial loss
Defences newspapers may use - S.2 (the truth), s.3 (honest opinion at the time of publication), s.4 (matter of public interest)

Media cases

Von Hannover v Germany No1 - public did not have a legitimate interest in knowing her whereabouts/how she behaved in her private life, even if she appeared in cases that were not private. Everyone (including celebrities) had a legitimate expectation their private life would be protected.
Von Hannover v Germany No2 - No violation of article 8 as the illness of the princess’ father was said to be connected to a matter of public interest
Campbell v MGN - publications of photos of her outside a rehab clinic were a disproportionate interference despite the public knowing she was receiving treatment. The court is a public authority and must protect rights under ECHR
Ferdinand v MGN - no violation, there was a public interest in correcting a false image promoted by C
Murray v Big Pictures Ltd - law protects the children of celebrities from the publication of unauthorised photographs unless their parents have exposed them to publicity

Data in English Law

Data Protection Act - controls how personal info is used by organisations, businesses and the gov, data protection principles must be followed by those responsible for using data, e.g. medical records
Breach of confidence - a common law tort allowing individuals or businesses to go to civil court to protect secret or commercially sensitive info, aims to prevent people who the info has been given to in confidence from using it t gain an unfair benefit

Cases on data/personal info

Medical records
MS v Sweden - respecting the confidentiality of health data is a vital legal principle
Axon v Secretary of State for Health - right to keep medical records private, if a child is proven Gillick competent the parental right to determine treatment is ended
DNA profiles - CJPA allows police to retain samples of convicted offenders on a database (S and Marper v UK), the blanket retention of DNA profiles of innocent people would pose a disproportionate interference with the right to private life and would be a violation of article 8 (and 5).

Gender, sexuality and one’s body

Gender Recognition Act
Marriage (Same Sex Couples) Act
Protection of Harassment Act

Cases:

AB v Secretary of State for Justice - continued detention of a pre-operative woman in a male prison breached her right to privacy
Pretty v UK - right to choose on how to end one’s life came under article 8, however, no breach as UK is operating under margin of appreciation
Bland/Malcharek - respect for private life is applicable to withdrawal or medical treatment and refusal (MS B v NHS) of it
Wainwright v UK - C and his mother went to visit his stepbrother in jail, they were asked for a strip search and reluctantly consented. Touching of the body is part of right to private life, Article 8 also protects physical and moral integrity. The searches were not proportionate to the aim of preventing crime, breach of article 8

Private life and surveillance by the state

Investigatory Powers Act - a public authority and security services may be free to use a whole range of tools for snooping or hacking
Wood v CPM - police took photographs of a man connected with a group opposing the arms trade and he left a meeting of a company that organised a trade fair, held to be an interference with his right to respect for private life as police failed to justify the interference was in accordance with the law, neccessary and proportionate for one of more of the following aims (8.2)
Peck v UK - CCTV footage released of a suicidal man was a breach as there was no relevant or sufficient reason to support the disclosure - even though he was in a public street, he was not a public figure or participating in a public event

Family life

Article 8 gives the right to enjoy family relationships without interference from the state, includes the right to live with a family and where possible the right to regular contact with a family
Many aspects of family life can be affected by the state (e.g. care proceeding, access to a child or forced break up of relationship due to immigration rules)
Gaskin v UK - refusal to allow a fostered boy access to his records was a breach
Johannsen v Norway - weight should be attached to the best interests of the child, which may override the rights of the parent
Yousef v Netherlands - where rights of a parent and a child are at stake, the childs rights must be the paramount consideration

Home

Respect for your home means public authorities should not stop you from entering/living there without good reason, nor should they enter without your permission, right to enjoy your existing home peacefully. A public body includes publicly owned housing rented to a tenant

Correspondence

All forms of communication, phone calls, letters, texts, emails, etc
Correspondence covers the right to uninterrupted (must be direct, no third party) and uncensored (unchecked) communications with others
Data Protection Act, Investigatory Powers Act overlaps
Malicious Communications Act - it is an offence to send another person a letter, electronic communication or article which conveys a message that is indecent or grossly offensive, a threat, info that is knowingly false, the intention to cause distress or anxiety to the recipient or any other
Klass v Germany - powers of phone secret surveillance of citizens are tolerable for safeguarding the democratic institutions
Halford v UK - was a violation when employer tapped phone calls as she was in the process of claiming discrimination
Niemietz v Germany - private life includes being at work and an office, police searched a lawyers office to try and identify a subject, this was a part of the lawyers home and private life
Barbulescu v Romania - In original verdict, no breach. Later it was rules Mr B’s rights had not been protected. when B used a work Yahoo account to send personal messages which was strictly forbidden, the investigation of his personal messages and dismissal was proportionate within the margin of appreciation. Established that employers were able to monitor work emails provided the employer is informed, employee must be made aware of any consequences of his use for personal reasons. In the absence of a warning the employee can expect privacy.

8.2 limitations

In Accordance with the Law - must be a specific legal rule that authorises interference, must be precise to enable foreseeable circumstances in which it may be applied e.g. Investigatory Powers Act
Necessary in a Democratic Society - notion of necessity implied the interference corresponds to a pressing social need and that it is proportionate to the legitimate aim pursued
National Security - e.g. Investigatory Powers Act
Public Safety - e.g. public surveillance cameras
Economic Well-being - steps to safeguard the economic stability of the country, combatting financial crimes such as money laundering tax evasion. Governments often implement measures that involve the collection and monitoring of financial data including income, assets and financial transactions
Prevention of Disorder or Crime - maintaining public order, preventing criminal activity, e.g. CCTV
Protection of Health or Morals - Smoking Regulations 2007, aimed at protecting public health by prohibiting smoking in enclosed public spaces. This may be considered an interference with private life
Protection of Rights and Freedoms of Others - Protection of Harassment Act