Article 8 of the European Convention of Human Rights

What type of right is Article 8?

Qualified right and therefore can be balanced with others (commonly article 10-Freedom of Expression)

What does Article 8 protect?

The right for a persons private and family life, his home and correspondence to all be respected

What has the ECtHR interpret the phrase “respect” to mean?

The state has a positive obligation to keep their laws under review

What type of instrument is the convention and what does this mean?

“living instrument” and therefore the standards change over time

What is the case for it being a living instrument?

Sheffield and Horsham V UK

What does private life include?

“Physical and social identity, gender identification, name and sexual orientation”

What is the case that states what private life includes?

Pretty V UK

What else is covered by a private life under Bensaid V UK?

A persons mental health

What else is covered under Goodwin V UK?

Sexual Orientation

What did the ECtHR further clarify that a persons private life is based on under Peck V UK?

Dignity of the individual

Due to the living instrument doctrine, family life changes reflect what?

Biological and social reality

What is the case that states family life changes to reflect biological and social reality?

Kroon V Netherlands

What constitutes family life depend on?

Close family ties and is a matter of fact and degree

What is the case that states what constitutes family depends on?

Lebbink V Netherlands

What constitutes family life has been held to include what?

Children and Grandchildren

What is the case that states children and grandchildren constitute family?

Marckx V Belgium

What type of relationships can come under the context of family life?

Homosexual

What is the case where the UK Courts reinterpreted the word spouse?

Ghadian V Godin-Mendoza

What type of term is home life?

Broad term which is context dependant

What is the term for home life being context depedant?

Khatun V UK

When can your right to a home life constitute?

Even if you do not constantly live in your home

What is the case that states your right to a home life continues even if you do not constantly live in your home?

Gillow V UK

What is the case that home life includes the land that you are on?

Conners V UK

What does the term home life not provide you with?

Does not provide you with a right to a home

What is the case that states it does not provide you with a right to a home?

Novoseltsky V Ukraine

What does Correspondence include?

All forms of communication (Letters, Teleophone calls, faxes emails)

At work you still have the right to correspondence but when when does it get more limited?

In the workplace

When can article 8 be limited under?

Article 8(2)

What are the three factors that must be met to limit Article 8?

-The interference must be prescribed by law

-The interreference must be for one of the legitimate aims

-The interreference was proportionate to the legitimate aim and necessary in a democratic society

What are some of the legitimate aims that the interference must be for?

-The interests of national security

-The interest of public safety

-The economic wellbeing of the country

-Prevention of disorder or crime

-Protection of health or morals

-Protection of the rights and freedom of others

What is the balance under article 10 under Campbell V MGN?

Is there a reasonable expectation of privacy or not

Access to medical treatment: fertility treatment: What did the ECtHR rule in Evans V UK?

The ECtHR ruled that UK’s requirement that both parties consented the embryo being brought to term did not breach article 8 as it effectively balanced the rights of E and her ex-partner.

Retention of personal data including photographs, video and DNA: What did the Court of Appeal find under Wood V Commissioner of Police for the Metropolis?

The Court of Appeal found that, whilst under article 8, this could be permitted it was their view that it was a disproportionate interference with article 8.

Sex, Gender and Gender Orientation: What did the ECtHR hold in Goodwin V UK?

the ECtHR held that the UK’s lack of recognition for gender reassignment violated article 8. This led to the Gender Recognition Act 2004

Sex, Gender and Gender Orientation: What did The Court find that article 8 was engaged in under AB V Secretary of State for Justice?

The Court found article 8 was engaged and found that the SOS had breached her article 8 right and was not convinced by the Secretary of States argument about resources as a female prisoner could have posed the same risk (they would have been held in a female prison).

The development of laws surrounding online rights and privacy protections: In Big Brother Watch and others V UK what did the UK do and what did the ECtHR hold?

The UK authorities intercepted the UK online communications in bulk (including internet search history, email, instant messenger, search engine enquiries and social media activity). The UK argued this was necessary to safeguard national security and detect and prevent crime. The ECtHR held it was a breach of article 8 because the safeguards were not sufficient.

The development of laws surrounding online rights and privacy protections: Where was this reinforced?

This was reinforced in Wieder and Guarnieri V UK in 2023.

The inclusion of environmental protections in article 8: What was included in Lopez and Ostra V Spain?

the ECtHR included protection of environmental factors (including smells, noise and smoke) caused by a sewage plant near where they lived constituted a breach of the respect for the applicant’s home lives.

The inclusion of environmental protections in article 8: In 2024 in Verin Kliiman Seniorinnen Schweiz V Switzerland what di the EctHR futher recognise that a state failure to do what?

the ECtHR further recognised that a state failure to take sufficient steps to address climate change – resulting in heatwaves which made living conditions worse (among other prospective risks) – was a violation of the need for respect in article 8 for the applicant’s home lives.

Balance with article 10: How do you establish the public interest under Campbell V MGN?

What’s in the public interest is not what the public find interesting; there must be some beneficial reason for the public to know the information – above simply it’s interesting information.

Balance with article 10: How does Von Hanover V Germany show that this is not in the public interest to know?

Photographs of a German princess did not contribute to any genuine public debate and were just purely for entertainment purposes.

Balance with article 10: Where is it seen in Mosley V News Group Newspapers that there was a breach of article 8?

Mosley had participated in sadomasochistic Nazi themed sex parties. The News of the World published details of this.

The UK High Court held this was a breach of article 8 as there was no public interest in knowing this information as again it did not add

to anything.

How is it argued that A problem with article 8 is the difficulty in defining the scope.?

The ECHR have defined the right so widely – especially ‘private life.’

What is the case which shows that The ECHR have defined the right so widely – especially ‘private life.’?

In the case of, Peck V UK the ECHR stated ‘private life’ was not capable of an exhaustive definition. 

What does it mean if the ECHR have defined the right so widely – especially ‘private life.?

means it is difficult draw the line as to what is and is not capable of coming under the definition of a private life.   This inability to define obligations creates difficulties with states trying to meet their obligations under the convention rights.   Moreover, Lord Walker has highlighted that the right is ‘volatile and abstract’ in R (Razgar V Secretary of State for the Home Department). 

However what does the fact that ‘private life’ does not have an exhaustive definition means that Human Rights jurisprudence can do?

develop over time and rights will be better protected over time.  

How is it an advantage of article 8 is it continually updating to protect individuals?

This is good because it enables the law to consistently keep up with society.

Where can it be seen that article 8 is updating to protect individuals?

This can be seen from the case of Sheffield and Horsham V UK which places a positive obligation on the state to keep laws under review.

How is it seen as a major advantage that the law is consistently kept up with society?

as, generally, human rights protect minority interests: by ensuring that states have an obligation to continuously review and update laws as the margin of appreciation narrows means all those within the council of Europe should enjoy ever expanding rights. 

However what has Lord Sumption critiqued?

, ‘the living document’ doctrine means that the original signatories to the convention effectively signed up to an ever-changing agreement – it’s not clear the original proposers would recognise as many rights that are now recognised by the convention. 

How is it seen to be an advantage if article 8 has led to an expansion in the common law?

This is good because the common law can change faster than statute.

What is evidence of how article 8 has led to an expansion in the common law?

Due to S6 of the Human Rights Act 1998 Campbell V MGN as confirmed in Douglas V Hello breach of confidence was expanded to include privacy claims.

How has the development been argued to be highly beneficial?

as the courts can be more responsive than Parliament and have been able to adapt the law to the intention of Parliament – given the court is a public body under S6 of the Human Rights Act 1998.   Moreover, the development in the common law has led to better rights in the UK as a ‘proxy’ right to privacy.

 

Moreover, the number of celebrity cases has increased the right to privacy in the UK.

However what is it argued that the role of the Human Rights Act 1998 was not to do?

not directly to develop the common law, nor did it instruct judges to adapt the common law, therefore it could be argued these changes have been made without a direct democratic mandate. 

 

This is has forced judges to make a change to the law which was probably unintended. 

How is it a disadvantage if what constitutes a family is poorly defined?

This is a problem because it makes it difficult to know the extent to which the right applies.

What is the case which shows that what constitutes a family is poorly defined?

In the case of Kroon V The Netherlands the Court found that ‘families’ should be based on ‘social and biological’ realities.  Further, in Lebbink V Netherlands it was deemed that close family ties should be assessed as ‘matters of facts and degree’.

Why is it problematic if what constitutes a family is poorly defined?

This is problematic as states are required to ensure that they comply with the right set out in the convention – it is very difficult to do this if they are not clear. 

 

Moreover, given the fact that family units can operate differently across the council of Europe States, it is difficult to predict how the margin of appreciation will operate in such cases. 

However what does the development in Lebbink simply reflect?

reflects the practical reality of the modern world.   The traditional definition of a nuclear family from when the convention was drafted is no longer as appropriate in a modern context. 

How is it an advantage if Article 8 has kept up with societally changing views?

This is good because the law accurately reflects societal attitudes.

What is the case which shows article 8 as keeping up with societally changing views?

Goodwin V UK held that the previous law in relation to gender recognition was unlawful – this led to the Gender Recognition Act 2004.

Why is it a positive if laws reflect the societies that they serve?

as this creates public confidence and thus extends legitimacy to human rights law – especially for minorities whom human rights law is meant to protect the most.

However as the council of Europe interprets the margin of appreciation and the living doctrine meaning?

taking into account all of the moral viewpoints of the members of the council of Europe often such social change can feel slow and disempowering to minorities – there were several cases before Goodwin V UK which did not hold that there was breach of article 8 before Goodwin V UK decided that there was.