3B.3.3 Article 8

Question 1

Article 8

Answer 1

The right to respect for family and private life.

Question 2

Is Article 8 qualified?

Answer 2

Article 8 is a qualified right, which means the right can be limited.

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

Question 3

What are the four aspects to Article 8?

Answer 3

• Private life
• Family life
• Home
• Correspondence

Question 4

What does ‘respect’ mean in Article 8?

Answer 4

Article 8 is based on the concept of ‘respect’ of the rights. This means that the state must take positive steps to protect these rights.

This was considered by the ECtHR in Sheffield and Horsham v UK.

Question 5

Sheffield and Horsham v UK

Answer 5

State refused to recognise gender reassignment.

Legal principle: State should be pro-active in reviewing the law and not interfere with rights.

Question 6

Private life

Answer 6

Aspects of the right to private life include:

• The physical and psychological integrity of a person
• Sexual life and gender
• Personal data
• Reputation
• Names

The meaning of ‘private life’ is very wide, and must not be confused with the idea of privacy. It has been given a broad, inclusive meaning by the ECtHR.

Cases: Pretty v UK, Bensaid v UK and Halford v UK.

Question 7

Pretty v UK

Answer 7

The ECtHR set out the scope of Article 8 as including physical social identity, gender identification, name, sexual orientation and personal development. The case emphasised the importance of personal autonomy and dignity as factors involved in decision making.

Question 8

Bensaid v UK

Answer 8

The ECtHR said that ‘mental health must be regarded as a crucial part of private life’.

Question 9

Halford v UK

Answer 9

Alison Halford was an assistant chief constable. Her telephone calls were intercepted by senior police officers to obtain information regarding a sex discrimination claim she was pursuing in an employment tribunal.

Held: The interception of the telephone calls of an employee in a private exchange was a breach of the right of a private life under Article 8.

Question 10

Sexual identity and gender

Answer 10

The right to a private life also includers sexual identity.

The ECtHR is a ‘living instrument’, meaning it is fast changing.

Case: Steinfield and Goodwin v UK.

Question 11

Steinfield

Answer 11

C wanted to have an opposite-sex civil partnership instead of marriage (because of the sexist administrative process of marriage). C won and the SC made a statement of incompatibility.

Theresa May changed the law to make civil partnership for mixed-sex couples legal.

Question 12

Goodwin v UK

Answer 12

The ECtHR held that barriers imposed on a transgendered person violated their rights to private life.

Question 13

Personal data

Answer 13

Personal information and data are also included in the right to private life. This means things such as DNA details and medical records.

Cases: MS v Sweden, Gillick and Axon.

Question 14

Gillick (1984)

Answer 14

Mother wanted to prevent under 16s from accessing contraception without parental knowledge/consent. This was for religious reasons.

Held: A child is “Gillick” competent if they can understand the risks and consequences. If a child is “Gillick” competent then they have the right to privacy (and right to consent).

Question 15

Axon (2006)

Answer 15

Mother wanted to prevent under 16s from accessing abortions without parental knowledge/consent. This was because the mother was concerned about potential negative mental health effects on the child after an abortion. C lost case.

Held: Provided the child is Gillick competent, the parental right to determine medial treatment is ended.

Question 16

MS v Sweden (1999)

Answer 16

Respecting the confidentiality of health data is a vital principle”.

Question 17

Names and Article 8

Answer 17

Names are seen as central to the idea of identity.

Johansson v Finland (2002): Parents who wished to name their child ‘Axl Mick’ were denied this right by registrars in Finland. This was in breach of Article 8. The ECtHR held that the choice of a child’s name was a private family matter. The name was not ridiculous or whimsical or likely to lead to the child to suffer prejudice.

Question 18

The right to privacy in the UK

Answer 18

In English law there has never been a right to privacy.

The Data Protection Act 1998 controls how personal information is used by organisations, businesses or the government. Everyone responsible for using data has to follow strict rules.

The intrusion into private life has always been a feature of the tabloid press. The principle of freedom of expression under Article 10 overlaps with Article 8. The difficulty is in establishing what is in the public interest and what is a mere invasion of privacy. The courts have had to balance individual rights to privacy and to freedom of expression.

• The cases of Wainwright v Home Office (2003) and Campbell v MGN Ltd (2004) show a contrast in the development of the law in England.

Question 19

Can Article 8 be used in private disputes?

Answer 19

No - Article 8 is not available in private disputes. It can only be raised in cases involving a public authority. The court, however, must take into account ECHR as it must not make a decision that is incompatible with ECHR.

Question 20

Campbell v MGN [Mirror Group Newspapers] (2004)

Answer 20

Naomi Campbell (“supermodel”) denied taking drugs but was pictured in the Mirror outside a NA meeting. Although the original article was supportive, she initiated a case against MGN the day after they printed more articles which were scathing. Held: No question of priority of Article 10 over Article 8. The publication of photographs were a disproportionate interference with her right to privacy. Naomi Campbell succeeded even though the newspaper publisher was not a public authority.

Question 21

PJS v News Group (2016)

Answer 21

Famous person (thought to be a footballer?) had a threesome. He sought an injunction from printing due to private right. The Sun appealed but the Supreme Court held it was not in the public interest and the injunction was done to protect the wife and children of the unnamed celebrity. Injunction granted.

Question 22

Wainwright v Home Office (2003)

Answer 22

Cs were strip-searched for drugs on a prison visit. At trial, the judge found there was a breach of article 8 because the prison officers should have provided a reason.

Held: There is a right to not be touched - qualified.

Question 23

Family life

Answer 23

What constitutes a family develops over time to reflect social reality.
Family includes:
- children and grandchildren (Marckx v Belgium (1979)).
- adoptive relationships (Pini and Others v Romania (2004)).
- cohabiting heterosexual couples (Kamal v UK (2017)).
- foster relationships (X v Switzerland (2017))
- same sex relationships (Schalk and Kopf v Austria (2011))

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

Question 24

Does the concept of family continue after divorce?

Answer 24

The concept of a family continues after divorce (Berrehab v Netherlands (1989)).

Question 25

Give examples of how aspects of family life can be interfered with by the state?

Answer 25

For example:
- care proceedings and the possibility of a child being removed from the home
- access to a child
- forced breakup of a relationship as a result of immigration rules

Question 26

Are all marriages protected under Article 8?

Answer 26

Article 8 always extends to lawful and genuine marriages. A sham marriage to avoid immigration rules or to acquire nationality may not be protected.

• Problems can arise when immigration rules cause a couple who are living together in England – with no suggestion of a sham marriage – find that one of them is not permitted to remain under immigration rules, while the other is a British citizen. | Case: Agyarko & Ikuga

Question 27

Agyarko & Ikuga

Answer 27

Agyarko came from Ghana to the UK with a one year visa, she wanted to bring her partner to the UK, but this was not allowed as she was married under Ghanaian law (not recognised by the UK). Ikuga came from Nigeria to the UK and wanted to bring their partner to the UK, but this was not allowed as they were not married.

Held: No insurmountable obstacles to the continuation of relationship and no exceptional circumstances. The decision may have differed if they had both been married in the UK or had children together.

Question 28

How does the margin of appreciation differ?

Answer 28

The scope of the margin of appreciation differs according to the context of the case. It is particularly wide in child protection cases – as seen in Gaskin v UK.

Question 29

Gaskin v UK

Answer 29

Gaskin was mistreated in care and wanted to take a claim for personal injury against the council. He couldn’t do this without knowing who was involved in his care so wanted to have access to his records.

UK courts had favoured keeping them from him based on public policy of maintaining care system – that professionals involved would be afraid to write the truth . ECtHR decided in applicant’s favour. Held: Relationships between children and foster parents or carers fall within the definition of a family.

Question 30

Family and private life in the UK

Answer 30

The Human Rights Act 1998 along with Article 8 has influenced

Cases: Wood, AB v Secretary of State for Justice and F & Thompson

Question 31

Wood

Answer 31

The taking and retention of photographs by the police of a person connected with a group opposed to the arms trade was an interference with that person’s right to respect for his private life under Article 8, and the police failed to justify that interference as being proportionate.

The police action was a sufficient intrusion by the state into the individual’s own space and integrity as to amount to a violation of Article 8.

Question 32

AB v Secretary of State for Justice

Answer 32

C couldn’t have a gender certificate unless they had lived for 2 years as female. C was made to be in a male prison so could not have lived for 2 years as female.

Held: violation of Article 8.

Question 33

F & Thompson

Answer 33

Sex offenders are required to notify state with their location etc. Not contrary to Art 8 but C should have right to review.

Question 34

Home

Home

Answer 34

Article 8 places a duty on the state to ‘respect’ a person’s existing home. This means the state must allow a person to have access to their home and the right to live in it. It means they have to protect peaceful enjoyment of their property.
It does not include a general duty to house the homeless.

• It does not guarantee a right to a home - Novoseletsky v Ukraine (2005).

Article 8 operates only with respect to an individual’s claim against a public body. This includes publicly owned housing rented to a tenant, but not where private landlords were concerned – as seen in McDonald v McDonald.

Cases: Khatun v UK, Connors v UK and Price v Leeds City Council, McDonald v McDonald and Niemietz v Germany

Question 35

Khatun v UK

Answer 35

The applicants suffered from pollution of the area of their home by dust caused by building works in London Docklands.

A distinction had been made between those applicants with a proprietary interest in the land and those without such an interest, such as the applicants.

Question 36

Connors v UK and Price v Leeds City Council

Answer 36

Article 8 is engaged where the dispute relates to eviction from a lawful site for traveller caravans, but not where the occupation of the land is unauthorised, in the Price case on a playing field.

Question 37

McDonald v McDonald

Answer 37

C suffered with mental health issues. Her parents bought her a property to live in, subject to a mortgage. When the parents ran into financial difficulties, the mortgage company tried to evict her and sell the property.

The Supreme Court decided that Article 8 does not require a court to consider whether it is proportionate to evict a residential occupier in a possession claim brought by a private residential landlord.

Question 38

Niemietz v Germany

Answer 38

he police searched a lawyer’s offices to try to identify a suspect. The search was part of ‘home’ and the lawyer’s private life.

‘Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’ This includes being at work.

Question 39

Correspondence

Answer 39

The interpretation is very wide, covering all forms of communication, including letters, telephone calls, faxes and emails. Interference must be justified under Article 8(2).

In Klass v Germany (1978), the powers of secret surveillance of citizens were tolerable under the ECHR only in so far as strictly necessary for safeguarding the democratic institutions.

This means that, in some circumstances, a public authority may be able to interfere with your right to a private and family life in order to protect public safety or the freedoms of others. This has interesting but untested possibilities, including the operation of the Investigatory Powers Act 2016.

The Investigatory Powers Act 2016 legalises a whole range of tools for snooping and hacking by the security services unmatched by any other country in Western Europe and the USA.

We have seen that the right to privacy extends to an office. With respect to private communications made at work, the case of Barbulescu v Romania (2016).

Question 40

Barbulescu v Romania (2016)

Answer 40

C used work email for personal use and was sacked.

Held: Article 8 right is reduced at work, but not completely. Employer should have legitimate reasons.

Question 41

Restrictions permitted by the ECHR – interception of communications

Answer 41

Most UK employers allow or at least tolerate some personal internet and telephone use at work, so the situation is unlikely to be replicated in the UK.

The Investigatory Powers Act 2016 sets up a framework for protecting against the abuse of the wide powers granted to the security services. This includes:
- Combining the powers available to law enforcement, security and intelligence agencies to obtain communications data
- Creating an Investigatory Powers Commissioner to oversee how these powers are used.
- Ensuring the powers are fit for the digital age.

However, this may not be seen as being compatible with EU law and the ECHR, as shown in the ruling from the CJEU in the cases of Tele2 Sverige and Watson (2016).

Where national legislation provides for data retention, any retention must be strictly necessary for the purposes of investigating serious crime and linked to the investment of serious crime.

Question 42

Tele2 Sverige and Watson (2016)

Answer 42

Data collection/retention must be only for investigation of serious crimes.

Question 43

Article 8(2) - Limitations

Answer 43

Article 8(2) states that any limitation must be:

• In accordance with law
• Meet a legitimate aim; and
• Necessary in a democratic society

And for one or more of the following legitimate aims:

• The interests of national security
• The interests of public safety or the economic well-being of the country
• The prevention of disorder or crime
• The protection of health or morals, or
• The protection of the rights and freedoms of others

Question 44

The ECtHR will look at the concept of proportionality when considering Article 8. What does this mean?

Answer 44

It involves finding the balance between the individual right and the community.

They will look at the following questions:
- Does the act meet the legitimate aim? Is the measure rationally connected with the objective in question?
- It is not arbitrary, unfair or irrational?
- Does it impact ‘the very essence of the right’? Does it remove all of the protection of the right?
- Is it the minimum interference possible? Is it the least intrusive measure possible?
- Is there a fair balance between the competing interests of the individual and those of the community?

Question 45

Critique point for Article 8’s restrictions

Answer 45

These restrictions make Article 8 almost pointless.