Article 8 Flashcards
(30 cards)
What is Article 8?
Right to Private and Family Life
What does Article 8(1) say?
“Everyone has the right to respect for his”:
Private life
Family life
Home
Correspondence
What kind of right is it?
A qualified right - can be taken away by state if sufficient reasons
Can article 8 be used in private disputes? Use a case.
No, they cannot be used in private disputes.
Case of Campbell v MGN - newspapers serve as a public function
Under the case of Pretty v UK, what does the scope of Article 8 include?
“physical and social identity,
gender identification,
name,
sexual orientation
and personal development”
A: Physical and Social Identity - cases and what they stated
Botta
ECtHR did say that Article 8 includes the psychological and physical wellbeing as well as the development of a personality without outside interference
B: Sex life and Gender - cases and important rules/statements made from them
Dudgeon
Bellinger
C: Personal data - what does this include, use cases and rules from them
Includes DNA details and medical records
S&Marper - retaining someones DNA without charging them with a criminal offence is a breach of article 8
MS - health data is a ‘vital principle in the legal systems’
Gillick Competence for under 16’s discussing contraception with doctors was allowed in the case of Axon
D: Names - what is said about names, use case
Names are central to identity
The case of Johansson showed that naming your child is a private matter unless the name could potentially cause ridicule or prejudice
E: Reputation - what overlaps here, use cases and explain rule/statement
A.8 & A.10 overlap
Case of Sir Cliff Richard states we should look at what is ‘in’ and ‘of’ the public interest when balancing
Van Hannover - pictures of children took without consent - When balancing articles 8 and 10 the court should consider whether the photos/articles contribute to a debate of general public interest
PJS - states neither article has precedent over the other
Weller - family is included
2: Family Life - definitions part 1
- Kroon v Netherlands 1995
o biological and social definition - Lebbink v Netherlands 2004
o close family ties - Marckx v Belgium 1979
o grandchildren included - Berrehab v Netherlands 1989
- continues after divorce
Family life - definitions part 2
- Kamal v UK 2016
o cohabiting couples - Pini v Romania 2004
o adoptive relationships - X v Switzerland 2017
o foster relationships - Schalk and Kopf v Austia 2011
- same sex relationships
Some more cases on family life and what they state
Gaskin - adopted/foster kids and unmarried couples still count as ‘family’
Yousef - best interests of child are always before the parents - also seen in Johannsen
R(Agyarko & Ikuga) - deportation allowed as relationship was seen to be able to go on. Courts have wide margin of appreciation with deportation matters
Does a home have to be owned by an individual or not?
No, the case of Khatun said it applies to owners and occupiers
Can A.8 right to home be used in private matters?
No - McDonald v McDonald - private matter so couldn’t be used
Rules and case on people who bring things like caravans onto land
A.8 right to home will be applicable if the person is being evicted from somewhere they can lawfully occupy (Connors)
If occupation of land is unlawful, such as a playing field, then A.8 will not apply - Price
What was the case where the couple was denied a license to move back into their home house and what does the right of home extend to?
Couple was refused a license and was seen as a breach in the case of Gillow
Niemetz states that the definition of ‘home’ is wide and therefore extends to business premises
4: Correspondence - what does this right mean?
It means that you have the right to communication without interception
What did the case of Klass state
Secret surveillance isn’t a breach so long as it is necessary and used to promote public safety, or promote freedom of others
Complete sentence and use case: Any interference must be ________
Any interference must be justified under article 8(2) and be in accordance with law
Investigatory Powers Act
More cases for correspondence
Barbalescu - Right to correspondence and private life in the workplace
Copland - monitored phone calls, emails etc. of teacher that were not for purposes of her job
Halford - calls tracked after she lodged a complaint against her superior
Golder - includes those who are in prison
What are the three things that if satisfied can result in a justified restriction of article 8
The limitation must be:
In accordance with law
In pursuit of a legitimate aim
Necessary in a democratic society
It is in accordance with law - cases and what it means
Means any interference must be based on law that is clear, predictable and accessible by the claimant.
RIPA - Regulation of Investigatory Powers Act
Investigatory Powers Act
In pursuit of a legitimate aim - what are the aims
National Security
Public Safety
Economic Wellbeing of the Country
Preventing crime or disorder
Protecting health and morals
Protecting rights and freedoms of others
