Human Rights Article 8

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 public authority with the exercise of this right except such as 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 or crime, for the protection of health or morals, or for the protection of the rights and freedom of others

Privacy

Would be too restrictive to limit the notion to an inner circle - Niemetz v Germany

Article 8 and 10 overlap

An argument that someone’s Article 8 right has been violated will be countered by an Article 10 argument. The court will need to use ‘proportionality and the margin of appreciation’ to determine whether it was in public interest for the information to be disclosed

Living instrument principle

Article 8 is a negative right however it has been interpreted in a way that gives the state positive obligations to protect a person’s right to respect for privacy and family life and take steps to keep the law under review

Private life

Includes things such as physical and psychological integrity, sex life and gender, personal data and reputation

Peck v UK - not capable of exhaustive definition

Pretty v UK - emphasised factors such as personal autonomy and dignity

Bensaid v UK - mental health is part of private life

Halford v UK - surveillance breaches private life

Sexual Identity and gender

Horsham v UK - Right for new sexual identities was denied as it is well within the margin of appreciation granted to states

Gender Recognition Act 2004 allows trans people to apply for legal recognition

Marriage (same sex couples) Act 2013

Goodwin v UK - barriers imposed on trans people violated right to private life

Personal data

S and Marper v UK - includes DNA samples being retained and ‘multiple aspects of a person’s physical and social identity’

MS v Sweden - protecting health info is vital

Axon v Secretary of State for Health - relationship of Gillick competence with private medical records

Names

is seen as a private family matter and names can generally not be impeded by the state - Johansson v Finland

Names that contain obscenities, numerals, misleading titles, or are impossible to pronounce may not be allowed

Can press intrusion be justified?

Press intrusion can be justified if it’s in the interests of justice

Campbell v MGN Ltd - HoL agreed info about Campbell attending Narcotics Anonymous meetings should have been kept private

Murray v Express Newspapers Ltd - the child of a public figure’s right to privacy outweighed newspapers right to publish

Protection from Harassment Act 1997

Criminal offence to pursue a course of conduct amounting to harassment

Is also a crime when the conduct puts V in fear of violence

Includes racial and religious harassment, certain forms of protest and some anti-social behaviour

Malicious Communications Act 1998

Covers the sending of ‘letters, electronic communications or articles of any description’ which convey a grossly offensive message, a threat, or information which is false (and the sender knows it to be false)

Family life

The right to enjoy family relationships without interference from the state. Include the right to live with a family, and where this is not possible, the right to regular access with ‘a’ family.

What is considered family?

Kroon v Netherlands - legal forms should not prevail over ‘biological and social reality’

Pini and Others v Romania - includes adoptive relationships

What constitutes a family depends on close ties and is a matter of degree - Lebbink v Netherlands

Same sex relationships included and protected by 8(1) - Kopf v Austria

Immigration and family life

People can only stay in the UK due to their right to respect for family life if there are ‘insurmountable obstacles in the way’ of them continuing their family life outside the UK
Agyarko and Ikuga v Secretary of State for Home Department

Nasri v France

Children in care and family life

Johannsen v Norway - it is not an infringement of family life for a child to be placed in permanent care if it is in their best interest

Gaskin v UK - refusing to allow someone access to their private care records is a breach of family life

Home

There is no right for the state to provide a person with a home (Novoseletsky v Ukraine) except for in some cases, e.g. the state has to provide accommodation for the severely disabled (Marzari v Italy)

Niemetz v Germany - home could include the workplace

Khatun v UK - it is a home whether they are the ‘owners of the property or merely occupiers living on the property’

Correspondence

Includes telephone conversations, messages, fax, emails

Golder v UK - still applies to people in prison

Klass v Germany - power of surveillance tolerable only insofar as is necessary for safeguarding democratic institutions

Investigatory Powers Act 2016 set up a framework for protecting against the abuse of surveillance in the UK

Interference with rights

Must be in accordance with the law

For one of the five legitimate aims

Necessary and proportionate in democratic society

In accordance with the law

Sunday Times Test - Sunday Times v UK - is the law accessible? Is the law made with sufficient precision to enable the citizen to regulate his conduct?

Five legitimate aims

The interests of national security

The interests of public safety or the economic well-being of the country

The prevention of disorder and crime

The protection of health or morals

Protection of the rights and freedoms of others

Necessary in democratic society

Observer and Guardian v UK - principle of proportionality - if measure taken answers a pressing social need and is proportionate to a legitimate aim