Article 8 Flashcards
What is article 8 ECHR?
- Is that everyone has the right to respect for his private and family life, his home and his correspondence
- there shall be no interference by a public authority with the exercise of this right except such as is in accordance and is necessary in a democratic society in the interests of national society.
What is the general scope of Article 8?
‘Everyone’ in Article 8 has been held to not just apply to individuals but also businesses
The word ‘respect’ means that there is both a negative obligation on states not to unduly interfere with these rights, but also a positive obligation to take steps to protect these rights.
What does private life mean in regards to Article 8?
The meaning of ‘private life’ is very wide - this encompasses matters including, physical and psychological integrity of a person, sex and gender, names and photos
What was understood in Peck v UK?
C was filmed by a CCTV camera in a public street moments after he had attempted to commit suicide –> later these photos were published regarding the benefits of CCTV
—> This was a serious interference with Article 8 and there was no legitimate justification for these being released - although in the aim of public safety there were not sufficient safeguards and therefore constituted a disproportionate interference with the applicants rights under article 8
How is Family life understood under article 8?
Family life is the right to enjoy family relationships without interference from the state and includes children and grandchildren - Marckx v Belgium (1979)
What are cases explaining Family life?
Gaskin v UK - ECtHR held that relationships between children and foster parents forms part of the right to ‘family life’.
Agyarko and Ikuga - should illegal immigrants that have formed relationships with British citizens be allowed to stay in the UK on grounds of deporting them violates their right to family life.
- Supreme court stated there is no violation of Article 8 –> only in exceptional circumstances should an immigrant be allowed to stay in order to continue ‘family life’
Goodwin v UK - ECtHR held that transsexuals being prevented from marrying was a breach of article 8 as this no longer fell within the margin of appreciation
Bellinger v Bellinger - transexual woman married man - The matrimonial causes act 1973 said that marriages between same sex couples were void. It was not possible to interpret the Act in way which covered people who had undergone gender reassignment - a declaration of incompatibility was issued under s4 HRA.
The gender recognition act was also passed in 2004, which allows transsexuals to apply for a Gender Recognition Certificate.
What is home in regards to article 8?
- Respect for home includes the right to enjoy one’s home peacefully, and this can include business premises
- the right to respect for one’s home does not impose a positive obligation on the state to provide a home
- the right is to enjoy your existing home peacefully, without unnecessary intrusion from the authorities
- This right applies to everyone living there, regardless of whether they have proprietary interest in the property
How is privacy protected/eroded under english law?
There has never been a free-standing right to privacy in English law
However, there are laws against breach of confidence, misuse of private information, as well as laws regulating interception of communications by the government.
What is breach of confidence and misuse of private information in regards to article 8?
Breach of confidence is a common law tort where a person can claim damages if information disclosed to a person in confidence is used by that person.
In most causes C will be after an injunction to stop the conduct or further publication/disclosure.
Interim injuctions can be granted before the full court case to prevent the publication until a final decision is made
It is commonly used in employment situation to stop trade secrets being disclosed to, for example, a companys competitors, and traditionally required a relationship of confidentially.
