Article 8 Flashcards
(11 cards)
Describe
Article 8(1) and 8(2)
- Qualified Right
Article 8(1) - Everyone has a right to respect for a private life, family file, home and correspondence.
Article 8(2) - State can interfere if,
1) In accordance with law
2) Meets a legitimate aim
3) Necessary in a democratic society.
Describe
Private Life definition * Mental Health + Development of Personality + Sexual Orientation
Pretty v UK, Bensaid v UK, AB v SOS of Justice, Goodwin v UK
Pretty v UK - Private life includes, physical, social identity, gender, name and orientation
Covers a person mental health
A person has right to stable mental health
Bensaid V UK - Breach if state action has significant adverse affect on mental health of the person.
Development of Personality.
AB v SOS for Justice - Breach if state discriminates based on person being transgender.
Sexual Orientation
Goodwin v UK - Member state can’t have legislation that discriminates on sex, gender or orientation.
Describe
Access to Medical treatment, Personal data
Gillick, Wood v Commissioner of the Police, S and Marper v UK
Access to medical treatment
Person has a right to access medical treatment
Gillick - A persons medical records form part of their private life.
Personal Data
Confidential if given out without consent breach.
Includes photo, DNA, videos and personal details.
Wood v Commissioner of the Police - Taking photos of a person is not a breach, retaining without legitimate aim is.
S and Marper v UK - Police can retain DNA indefinitely only for convicted criminals.
Describe
Private life of Celebrities
Campbell v MGN, Hannover v Germany, Murray v Express Newspapers Ltd
A celebrity has a right to private life but can’t expect the same privacy as an ordinary citizen.
Campbell v MGN - Priority is always the welfare of the people involved.
Hannover V Germany - If information is public interest or just interesting to the public / Status of person concerned / Prior conduct of person / Offence of Publication / Consent
Murray v Express Newspapers LTD - Breach if child of famous person is photographed without parents consent.
Describe
Family Life definition + Naming Children + Same Sex Relationships
Kroon v The Netherlands, Ghaidan v Godin-Mendoza
- Article 8 right to enjoy family relationships without interference from state, family life depends on close family ties, and is a matter of fact and degree, including all types of family.
Kroon v The Netherlands - Biological and social natures of the relationship is more important than legal formalities.
Naming Children
* Margin of Appreciation for each member state, silly names or offensive names are banned in Germany.
Same-Sex Relationships
Spouse means persons husband or wife.
Ghaidan v Godin-Mendoza - Cohabitating heterosexual couples and Cohabitating homosexual couples should be treated the same under legislation.
Describe
Home Life + Police Search/Surveillance + Eviction
Halford V UK, Connors v UK
- Article 8 gives right to enjoy existing home peacefully, no right to be provided a human, but state can lawfully restrict this.
Police Search
Halford v UK - Police can lawfully carry out surveillance of persons home and correspondence with legal basis
Eviction
Connors v UK - A person can’t be evicted from their home without lawful reason.
Describe
Correspondence + Monitoring at Work + Police Surveillance
Klass v Germany, Copland v UK, S.32 RIPA Act 2000, IPA Act 2016, Big Brother Watch and Others v UK
- Article 8 right to have and hold private corespondence with others through communication methods
Klass v Germany - Is it a strictly necessary safeguard?
Monitoring at Work
Copland v UK - If there is surveillance on someone’s work correspondence, person needs to be made aware first.
Police Surveilance.
* Authorised by two statute.
S.32 of Regulation of Investigatory Powers Act 2000 - Interception and Surveillance can be carried out to protect national security or prevent crime through, bugs, video surveillance or undercover agents.
Investigatory Powers Act 2016 - Framework updates for new technology, can monitor with judicial approval.
Big Brother Watch and Others v UK - Main provisions of both acts not a breach, unless used to mass surveillance.
Evaluate
Qualified Right
- Article 8 is a qualified right, protects individual rights.
- What must state guarantee? Good thing? When can state intervene with 8(2)? To stop what?
- Qualified so when can state restrict easily citing? What is the margin of appreciation? Names as an example how is this unfair?
- Fam, Priv, Home Correspondence , good for state to guarantee, can interfere to protect children or stop offensive names.
- Private life through justifying it through national security, too easy to limit, each state has different culture so name in UK allowed and not in Germany, this is unfair and inconsistent under Margin of Appreciation.
Evaluate
Abuse of Power
- Rules of Article 8, prevent abuse of power.
- What does 8(2) mean state has to do? What can citizen challenge if breach? Halford V Uk, what did police do? The strict rules protect?
- How easy to justify an abuse of power? What can RIPA 2000 do? What does the case of Big Brother Watch and Others v UK show?
- Strictly limit right only when it is necessary to do so, is state breaches citizens can challenge unlawful acts, police searched with no legal basis, which was abuse of power, this protects against abuse of power.
- Public safety to monitor private correspondence when not needed, UK uses it to monitor even when not needed.
Evaluate
Protection of Individuals Rights
- Rules covering Sexuality, Gender, Signifcant other, Trans rights protect individual rights
- What can’t state discriminate under? What can the person get in breach? What happened in AB v SOS of Justice?
- What is state obliged to in law? What couldn’t change in Goodwin v UK? What act did this lead to?
- Article 8 to target based on these characteristics, will get compensation if breached, had certificate but discriminated against which was a breach.
- Living Instrument Principle, Couldn’t change gender on birth certificate, challenged and won, lead to Gender Recognition Act 2004, allowing gender to be changed on document.
Evaluate
Wide Interpretation
- Wide Interpretation of private and family life gives strong right protection.
- How wide is the definition? What can this cover? Good for the future? What is protected in Goodwin v UK?
- What does family life include? What can it be developed for? Case of Ghaidan V Godin-Mendoza for equal rights?
- Very wide definition, covers lots of situations and allows future change , personality development gets protected.
- Different family types and can be developed for social change, Equal rights for all so fair decision.
