Article 8

Question 1

what is the nature of article 8?

Answer 1

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 wellbeing 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 freedoms of others.

Question 2

qualified or absolute right?

Answer 2

qualified right, so may be lawfully limited

any limitation must have regards to the fair balance that has to be struck between the competing interests of the individual and of community as a whole.

Question 3

Under A.8 (2), limitations must be:

Answer 3

• in accordance with the law
• necessary and proportionate

and for one or more of the reasons:

• -Public safety or the economic well-being of the country
• -Prevent disorder or crime
• -Up to the state to show that the interference is justified
• -Protect health, morals, rights and freedoms of others

Up to the state to show that the interference is justified

Question 4

what are the 4 protected interests protected under A.8 (scope)

Answer 4

everyone has the right to respect for:

• private life
• family life
• home
• correspondence

Question 5

1) ‘RESPECT’

Answer 5

means the state must not interfere with qualifications in A.8(2), and also means state must take positive steps to protect these rights
Sheffield and Horsham v UK

Question 6

1) ‘RESPECT’ case

Answer 6

Sheffield and Horsham v UK
Gender re-assignment – male to female
State did not recognise as women
No breach of Article8(1)
State could refuse post-op transsexuals to marry
ECtHR recognised increased social acceptance of transsexualism
Gender Recognition Act , 2004 – apply for legal recognition for their new gender / Marriage Act (2013)

Question 7

2) ‘PRIVATE LIFE’, what does this mean

Answer 7

includes matters such as physical and psychological integrity; sex life and gender, personal data, reputation, names, photos

Question 8

2) ‘PRIVATE LIFE’ aspects

Answer 8

Physical and psychological integrity of the
person

Sex life and gender

Personal data (include medical records M S v Sweden)

Reputation

Names

photos

Question 9

2) ‘PRIVATE LIFE’ surveillance included

Answer 9

HALFORD V UK (1997)
C Claimed she had been discriminated against on
grounds of her ‘sex’
Interception of her home and office phone calls
To obtain info against her in the discrimination
proceedings
Breach of Article 8 – right to private life.

Question 10

2) ‘PRIVATE LIFE’ Expanded private life beyond home

Answer 10

NIEMIETZ V GERMANY (1992)
Police searched lawyers office
Expanded private life beyond home
Include work

Question 11

2) ‘PRIVATE LIFE’ access to information where a child is involved

Answer 11

AXON V SECRETARY OF STATE FOR HEALTH
‘Gillick competence’ (help asses whether child has maturity to make own decisions)
in respect to contraception, courts rejected claim providing child is Gillicks competent, parental right to determine medical treatment is ended

Question 12

3) FAMILY LIFE

Answer 12

the right to enjoy family relationships without interference by state
includes right to live with family, right to regular contact.

can include relationship by unmarried couple, and adopted child, foster parent and child

Question 13

3) FAMILY LIFE aspects that can be affected by state

Answer 13

-Care proceedings/ child removed
from family home
-Access to child
 -Forced break up of r ’ship due to
immigration rules

protection of A.8 extends to marriages which can be shown to be lawful and genuine so sham marriage to acquire nationality not protected

Question 14

3) FAMILY LIFE Gaskin v UK (1989)

Answer 14

scope of margin of appreciation differs according to context of case, its particularly wide in child protection cases
allows states a measure of discretion

refusal to allow him access to his records was breach of A.8

Question 15

3) FAMILY LIFE Johannsen v Norway

Answer 15

natural parents opposed to decision of state in respect of adoption
held that particular weight should be attached to best interests of the child, which may override those of parents

Question 16

4) HOME meaning

Answer 16

The right to enjoy your home peacefully;
public authorities should not stop you
from entering or living in your home
without good reason.
not right to house

Question 17

4) HOME owned by C or not

Answer 17

Khatun v UK
applies to all applicants whether they are owners of property or merely occupiers living on property like children of owner.

distinction made between those with proprietary interest in the land those without interest

Question 18

4) HOME claims by gypsies

Answer 18

Connors v UK,

A.8 is engaged where dispute relates to evictions from lawful site for gypsy caravans but not where land is unauthorised

Question 19

5) CORROSPONDENCE

Answer 19

right to uninterrupted and uncensored communications with others.
covers PHONE, LETTER, TEXT MESSAGES, EMAILS,
OTHER FORMS OF COMMUNCIATION

Question 20

5) CORROSPONDENCE Klass v Germany

Answer 20

secret surveillance accepted under ECHR
if safeguarding the democracy of state and citizens

Public authority may be able to interfere with private and family life to protect public safety.
Investigatory Powers Act 2016, legalises tools for snooping, hacking by security services.

Question 21

5) CORROSPONDENCE Barbulescu v Romania

Answer 21

private communications made whilst at work, was dismissed
A.8 had been engaged but employers interference had been proportionate with the state’s margin of appreciation
held Romania responsible for failing in its obligations to protect an individual’s right to privacy when it didn’t strike a fair balance between the applicant employee’s rights and the rights of his employer.

Question 22

English law and privacy

Answer 22

English law – doesn’t have a tort for invasion of privacy

PARTS OF ENGLISH LAW WHICH
RELATE TO PRIVACY:
 The tort of misuse of private information
 The tort of defamation
 The protection from Harassment Act 1997
 The Data Protection Act 2018
 The Regulation of Investigatory Powers Act 2000
 The Investigatory Powers Act 2016

Question 23

is A.8 available for private disputes?

Answer 23

not available in Private disputes
Article 8 can be raised in cases involving public authority
e.g. Judge deciding case in court
Judge must take into account ECHR when making a decision

Question 24

ENGLISH LAW COMPATIBILITY

misuse of private info

Answer 24

MISUSE OF PRIVATE INFORMATION IS A TORT
Campbell v MGN - succeeded even though newspaper publisher was not public authority.
Court argued person should have protection from
publication of personal information where there is
no justification