Article 8 Flashcards
(17 cards)
What type of right is Article 8?
- Qualified
- Civil/political
- Emerging
- 1st generation
What does Article 8(1) state?
Everyone has the right to respect for his private and family life, his home and his correspondence
What is the aim of Article 8?
To protect against arbitrary interference by a public authority/body with private life, family life, home and correspondence
Define the key terms of Article 8?
(HINT* res, eve)
- Respect = state cannot interfere, must protect (Sheffield v Horsham)
- Everyone:
–> Citizens of a member state (Klass v Germany)
–> A person’s business (Niemietz v Germany)
–> Limited companies (any person on UK soil)
What scope does private life cover?
- Gender
- Physical/physiological identity
- Name
- Image
- Personal data
- Reputation
What 6 circumstances does private life cover? (give cases)
- Sexual identity/gender (Dudgeon v UK, Goodwin v UK, AB v SS Justice)
- Sex life (Laskey/Jaggard/Brown v UK)
- Reproductive rights (Evans v UK)
- Media/celebrities/press (Douglas v Hello, Campbell v MGN, PJS v News Group Newspaper)
- Medical records (MS v Sweden, Axon v SS Health, Roche v UK)
- DNA/police records (S+Marper v UK, Gaughess v UK, Bridges v S.Wales Police, R v CC Greater Manchester)
What scope does family life cover?
- Marriages
- Relationships
- Children
- Care proceedings
- Adoption
- Break ups through migration
What 3 circumstances does family life cover? (give cases)
- Family
–> Biological + social factors (Kroon v Netherlands)
–> Close family ties (Lebbink v Netherlands) - Care proceedings (Gaskin v UK, Johansen v Norway)
- Immigration + asylum
–> Right not apply to sham marriages
–> Relationships can be maintained overseas (Agyarko + Ikuga v Home Dept)
What right does right to home life give?
Right to enjoy home peacefully without interference
What does right to home life not include?
Duty to provide home or alternative accommodation
What 2 main circumstances does right to home cover? (give cases)
- Right to not be evicted
–> Lawful traveller sites (Connors v UK, Price v Leeds City Council)
–> No private disputes (McDonald v McDonald)
–> Includes home offices (Niemietz v Germany) - Peaceful enjoyment of home
–> Not too exposed to noise/pollution (Hatton v UK)
What does right to freedom of correspondence cover?
Respect for all forms of communication (Barbulescu v Romania, Big Brother Watch+oth v UK
Explain the limitations under Art 8(2)?
- In accordance with law
–> Malone v UK - Necessary in a democratic society
–> Meet pressing social need - Proportionate
–> Aim justifies interference
–> Minimal interference
–> Interference not outweigh objective
–> Not arbitrary/unfair/irrational
–> Measure connected to aim - Legitimate aim
–> National security (Klass v Germany)
–> Public safety/economic wellbeing
–> Prevention of crime/disorder
–> Protection of health/morals (Brown+oth v UK, Dudgeon v UK)
–> Protection of rights/freedoms of others (Smith + Grady v UK, Buckley v UK, Gillow v UK)
Who does the burden of proof lie with for Article 8?
Burden on the state to prove interference was justified
What is the margin of appreciation?
Leeway given to a state (particularly on public morals) recognising the cultural differences in best measures (Handyside v UK, Rees v UK)
What privacy laws are in effect in the UK?
- Breach of confidence (Wainwright, Campbell, Chappell v UK)
- Defamation
- Protection from Harassment Act 1997
- Data Protection Act 1998
- RIPA 2000/IPA 2016
Evaluate Article 8
- Wide interpretation = unclear/uncertain however living instrument, dynamic institution
- No privacy laws outside of HR
- Qualified = wide range of legit aims limits protection however restricts arbitrary state power
- Terrorism = conflicts correspondence despite improvements by RIPA/IPA however necessary for public protection
- Competing interests with Art 10
- Wide margin = allows for fair state variation but conflicts universality
- Living article = interpret to reflect modern/ contemporary views (eg. safe and healthy home environment)
- Controversial and debated (euthanasia)
