Article 8

What is Article 8?

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

Everyone - individuals and businesses.

Respect - not interfered with and positive steps to protect these rights (e.g. via statute).

Private life - right to be who you want to be and have control over personal data (photos, medical records, DNA).

Family life - right to have/enjoy family relationships without interference.

Home - right to enjoy your home peacefully - not a right to a home. 

Correspondence - right to uninterrupted/uncensored communication with others (letters, emails, phone calls). 

Article 8 is a qualified right, what does this mean?

Due to public interest or to protect others, it is reasonable to restrict the freedom if needed.

Limitations must be: 

• In accordance with the law 

• Necessary 

• For one or more of the following aims: 

• Interests of national security 

• Interests of public safety 

• Prevention of crime 

• Protection of health and morals 

• Protection of rights and freedoms

Obligation of the State: Article 8- Respect

1. Respect: 

Two general requirements:

1. Obligation of the State to not interfere with rights protected in A8 - police cannot just enter your property without justification. 

2. Obligation of the State to take positive steps to protect A8 rights - state must act to protect e.g if a particular group is suffering lack of respect. 

1- Respect- Obligation of the State in protecting respect (state not interfering and taking positive steps) was considered by the ECtHR in Sheffield and Horsham v UK.

Sheffield and Horsham v UK 1999 

2 people had gender reassignment surgery. 

State would not recognise their new status. 

No breach of Article 8 as state could refuse to re-register birth detail of people who had undergone gender reassignment surgery. 

ECtHR recognised increased social acceptance of transsexualism - English law changed by Gender Recognition Act 2004. UK has an obligation to take positive steps to ensure the right to respect.

Gender Recognition Act 2004

Transsexual individuals can apply for legal recognition of new gender.

Sexual Offences (Amendment) Act 2000

Equality for heterosexual/homosexual age of consent.

Marriage (Same Sex Couples) Act, 2013

Allows marriage equality and access.

2. Private Life

Definition- The physical and psychological integrity of a person 

• Sex life and gender 

• Personal data 

• Reputation 

• Names 

• Photos 

It is the right to be who you want to be and have control over personal data (photos, medical records, DNA).

Niemietz v Germany 1992

Obligation of the State to ensure individuals are not subject to unjustified searches. Police searched a lawyer’s office to try to identify a suspect. Breached article 8.

Halford v UK 1997 

Obligation of the State to ensure individuals are not subject to surveillance.  

Summary = telephone calls were intercepted by police officers to obtain information - breached Article 8.

3. Family life

Right to enjoy family relationships without interference from the state. 

Includes right to live with family and the right to regular contact with family. 

Family life = relationship between an unmarried couple, an adopted child and the adoptive parent, a foster parent and fostered child. 

Many aspects of family life that can be affected by the state: 

• Child being removed from the family home 

• Access to a child 

• Forced breakup of a relationship as a result of immigration rules

Gaskin v UK 1989 

Obligation of the State to allow access to records if no specific justification for preventing individual to have access to information which forms part of their family life. 

Gaskin placed in care when he was a baby. Complained of ill treatment whilst in care and when living with foster parents. Wanted access to his care records held by local authority but request was denied - applied to the ECtHR. 

Refusal to allow him access to his record was a breach of Article 8 - must be specific justifications for preventing people from having access to information which forms part of their private and family life.

Johannsen v Norway 1996 

Obligation of the State to act in the best interests of the child.

Natural parents of a child opposed the decision of the state with respect to adoption. Mother had been subject to domestic violence and had a chaotic lifestyle - several interventions by Norwegian social services. Court stated that decision should be in best interest of the child which may override those of the parent.

4. Home

Public authorities should not stop you from entering or living in your home without good reason, nor should they enter without your permission. This applies whether or not you own the home. 

Attempts to extend A8’s remit to social and economic claims for welfare - access to medical treatment and specific drugs. 

5. Correspondence

Obligation of the State to ensure the right to uninterrupted and uncensored communications with others. 

Barbulescu v Romania 2017

Employer asked C to set up Yahoo Messenger to deal with clients - C used account to send personal messages - not allowed. Company investigated his communications including personal messages and dismissed him. ECtHR said interference did not breach A8 as C told employer that all messages were professional communications - employer did not look at anything else on computer. Grand Chamber ruled the ECtHR failed to protect C’s rights under A8 - employers able to monitor emails if employee is informed and is aware of consequences for using email for personal reasons.

Justifications for Interferences: Article 8

Limitations must be: 

• In accordance with the law 

• Necessary 

• For one or more of the following aims: 

• Interests of national security 

• Interests of public safety 

• Prevention of crime 

• Protection of health and morals 

• Protection of rights and freedoms

How is English law compatible with Article 8? - Private life 

• In English law - there has never been a right to privacy 

• Possibility for claims in the tort of breach of confidence 

• But…judge must take into account ECHR - decision that is incompatible with ECHR cannot be made 

• There are parts of English law which relate to privacy: 

• Tort of misuse of private information 

• Tort of defamation 

• Protection from Harassment Act 1997 

• Data Protection Act 1998 

• Regulation of Investigatory Powers Act 2000 

• Investigatory Power Act 2016 

Wainwright v UK 2007 

To show there is no specific right to privacy in English Law. 

C and mother went to visit stepbrother in prison. Asked to consent to strip search. Wainwright handled in a way that was later amounted to battery.  C had physical and learning difficulties and suffered with PTSD from strip search. Judge awarded damages as searches were wrongful because of battery and C’s right to privacy had been invaded. CoA and HoL disagreed - said Article 8 had not been breached. C appealed to ECtHR - decided A8 had been breached as the searches had not been proportionate to the aim of preventing crime and disorder. A8 include touching of the body as part of the right to private life.

Tort of misuse of private information

Misuse of private information is a tort - media publishing information gained illicitly / where private information has been passed between people or shared online.  

Campbell v MGN Ltd 2004 

Naomi Campbell was photographed coming out of a Narcotics Anonymous meeting in London. Newspapers published photos with the faces of others attending the meeting pixelated to protect their identities. Headline was ‘Naomi: I’m a drug addict’

Court stated that A8 had been breached as publication of photos outside a rehabilitation clinic was a disproportionate interference with her right to privacy

Tort of misuse of private information 

ECtHR and English law keen to consider the interests of a child 

Person is still a child until 18 but under 18s gain certain right at different ages 

Cases involving an attempt to protect the confidentiality of health information concerning a young person - Axon v Secretary of State for Health 2006 

Case discussed relationship of ‘Gillick competence’ - term used to help assess whether a child has the maturity to make his or her own decisions and to understand the implications of those decisions. 

Axon v Secretary of State for Health 2006

Axon queried whether a doctor is under an obligation to keep confidential advice and treatment proposed to a young person, under the age of 16, regarding contraception, STI’s and abortion. Provided child is Gillick competent, the parental right to determine medical treatment is ended or else there is a potential violation of Article 8. 

Tort of defamation

2 forms: 

• Libel - defamation in permanent form - broadcasting

• Slander - spoken, conduct or gestures. 

C must show that the statement complained of: 

• Is defamatory - meaning that an ordinary person would think worse of the claimant as a result of the statement 

• Identifies or refers to him or her 

• Is published to a third party

Defamation Act 2013 requires C to show that the publication of the statement caused them, or is likely to cause them serious harm. 

Tort of defamation- Defences:

1. Truth - Complete defence if the D can show that the imputation conveyed is true. 

2. Honest opinion - if statement complained of was one of opinion which could have been held by an honest person on the basis of any fact which existed at the time 

3. Publication on a matter of public interest - D has so show statement was, or formed part of, a statement on a matter of public interest 

UK Legislation

This section looks at English law to consider compatibility with ECHR obligations and consequences where English law interferes with ECHR.

1. Protection from Harassment Act 1997

• Stalking 

• Harassment = alarming or causing distress to a person 

• Conduct on at least 2 occasions - can include speech. 

Malicious Communications Act 1998

• Offence to send a letter, electronic communication which conveys: 

• Message which is indecent or offensive

• A threat 

• Information which is false 

1. Data Protection Act 1998 

Controls how personal information is used by organisations, businesses of the government 

1. Investigatory Powers Act 2016 

• Extent of investigatory powers to interfere with privacy 

• Unlawful interception of communication 

How has Article 8 influenced the development of UK Law?

(Examples of how UK Law has not been compatible with Article 8)

Wood v Commissioner of Police for the Metropolis 2009 

Article 8 has influenced the development of UK law. Police took and kept photos of a person connected with a group that opposed the arms trade as he left the annual general meeting of a company that organised a trade fair for the arms industry. Was an interference with their right to respect for private life under Article 8 - police could not justify their interference as being proportionate. 

AB v Secretary of State for Justice 2009

Article 8 has influenced the development of UK law. C suffered gender dysphoria and had been granted certificate under the Gender Recognition Act 2004 - says C is female - wanted gender reassignment surgery but Gender Identity Clinic would not approve her for surgery until she had lived as a woman for a period of time within a female prison. Asked for judicial review of the decision to keep her in a male prison as this prevented her from meeting terms for surgery. Failure to transfer her violated A8. 

F and Thompson v Secretary of State for Home Department 2010 

• UK regulations have been questioned in line with A8.  

Under Sexual Offences Act 2003, everyone sentenced to 30 months’ imprisonment or more becomes subject to lifelong duty to keep the police notified of where they are living and of travel abroad. 2 convicted sex offenders said absence of a right of review of the requirement breached A8 - said if was disproportionate to the aim of preventing crime. Supreme Court said there must be a way for the offender to seek a review so current law was incompatible.