Article 8 - right to family and private life Flashcards
(34 cards)
1
Q
article 8(1)
A
the right to respect private and family life, his home and correspondence
2
Q
private
article 8(1)
A
- physical and psychological integrity of a person
- sex life and gender
- personal data
- reputation
- names
- photos
- office documents
- listening to personal conversations (personal data)
3
Q
private
article 8(1) - private
A
- personal info (data) , identity (sexuality , gender)
- r v pretty - set out the scope and emphases the autonomy and dignity as what to consider
4
Q
physical and psychological integrity of a person
article 8(1) - private
A
- Wainwright v home office
- There was strip search by prison officers of mrs wainwright and her son during a visit to a prison
- Was a violation - not proportional
5
Q
sex life and gender
article 8(1) - private
A
- Sheffield and horsham v uk (1999)
- The government refused to recognise the new gender of people who had undergone gender reassignment surgery
- No violation as fell in the margin of appreciation, now has changed
- Vallianatos v greece (2013)
- Allowed homosexual couples to get civil partner but said no to heterosexual couples
- Violation
- Dudgeon v UK (1981)
- Criminal law amendment act 1885 criminalised homosexual men less favourably
- Violation
- AB v secretary of state for justice
- Claimant asked for a judicial review of the decision to keep her in a male prison
- Had gender dysphoria
- Wanted surgery but couldn’t have it until lived a number of years as a women in women prison, which she obvs couldn’t do
- Violation
6
Q
personal data
article 8(1) - private
A
- Axon v secretary of state for health (2006)
- Declared that a doctor was under no obligation to keep confidential advice and treatment proposed to someone under 16, in respect of contraception, STI and abortion from parents as it was part of their private life
- No violation
- Niemietz v UK (1998)
- Police searched lawyers house and work to find information about a suspect
- Violation - private life also include work life
- MS v sweden
- Stated respecting the confidentiality of health data is a vital principle in the legal system of all contracting parties to the convention
7
Q
reputation
article 8(1) - private
A
- PJS v News group newspapers
- Applied to the court for an induction to prevent publication of the fact, in 2011, he had a three way sexual encounter
- Protection of rights
8
Q
names
article 8(1) - private
A
- Johansson v finland (2002)
- Wanted to name their kid Axl Mick but finland refused
- Court found there was a breach to their private life and decided there would be no prejudice against in later life
9
Q
photos
article 8(1) - private
A
- Campbell v MGN ltd
- Was photographed coming out of a narcotics anonymous meeting
- Was a breach
- Wood v commissioner of police for the metropolis
- Taking and retention of photographs by the police of a person connected to a groups opposed in arms trade
violation
10
Q
office documents
article 8(1) - private
A
11
Q
listening to personal conversation (personal data)
article 8(1) - private
A
- Halford v uk (1997)
- Assistant chief constable and her telephone calls were intercepted by police officers gaining information for a sex discrimination claim she was pursuing
- Breach of rights
12
Q
family
article 8(1) - family
A
- marriage , records , live together
- every decision is in the best interest of the child
- the right to enjoy family relationships without interference from the state
- it covers a huge number of areas
13
Q
family includes
article 8(1) - family
A
- Right to live with your family
- Agyarko and Ikuga v secretary state for the home department - Two immigrants who were being deported
- And said the court was taking away the right to live with their family
- No violation
- Johannesen v Norway - Child taken away from parent by social services
- No violation as proportional
- Right to make contact with them
- Marriages
- Relationship between an unmarried
- Relationship between adopted child and adopted parent
- Gaskin v UK - Was refused access to old adoption records
- Was a breach
- Relationship between foster child and foster parent
- Care proceedings
14
Q
home
article 8(1) - home
A
- Mcdonald v mcdonald
- Parents bought a house for her and had mortgage plan
- Family went to debt and mortgage company tried to evict
- No violation
- A right to enjoy your existing home peacefully
- Khatun v UK
- Suffered pollution in the area and house was covered in dust
- Couldn’t enjoy house peacefully
- Violation
- Not a right to a home
- Public authorities shouldnt stop from entering your home or living there without good reason
- Public authorities shouldnt enter without permission
- Doesn’t matter whether you own the home or not but does matter whether you are authorised to be there (travellers)
- Price v leeds county council
- Travellers who were about to be evicted
- Tried to say the caravan was a home and that it should be protected
- No violation
15
Q
correspondence
article 8(1) - correspondance
A
- messages , emails , letter and phone calls
- Bărbulescu v românia
- Used work yahoo work account to send personal messages
- Work dismissed him for this
- Was a violation - disproportionate restriction from employers
- This means the right to uninterrupted and uncensored communications with others
- E.G phone calls, letters , texts and emails
- In some circumstances e.g public safety, public authority may interfere with the right
- Investigation power act 2016 - legalisles methods of snooping and hacking by the security services
- Klass v germany
- The powers of the lsecret surveillance of citizens were tolerable under the ECHR
- Only in so far strictly necessary for safeguarding in the democratic institutions
- The right still exists at the workplace (even if the employer has reduced the right to private correspondence) - the rights of employees must be balanced
16
Q
Proportional interference
A
the goal of the interference has to be sufficiently important goal, has to be connected to the aim and restrict it in a minimal way as possible
17
Q
8(2) - the restriction
A
there shall be no such interference by a public authority with the exercise of his rights expect such as accordance with the law and is necessary (proportional) in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others
18
Q
regulation of investigatory powers act 2000
regulation of investigatory powers act 2000-english law restriction
A
- regulates interception of communications by state bodies
19
Q
S.1(1)
regulation of investigatory powers act 2000-english law restriction
A
- it is an offence for a person without authority to intercept communcations from public , postal or telecommunications systems without authority
20
Q
S.1(2)
regulation of investigatory powers act 2000-english law restriction
A
- it is an offence for a person without authority to intercept communications from private , postal and telecommunications systems
21
Q
S.5
regulation of investigatory powers act 2000-english law restriction
A
- this gives lawful authority to the interception of communications if a warrant is issued by secretary of state
- S5(2) - only if necessary and proportionate
- S.6 - only if the application for the warrant is made by a person listed
- S.6(2) - such as the director general of secruity service
22
Q
S32(2)
regulation of investigatory powers act 2000-english law restriction
A
- allows the use of intrusive surveillance if the sec of state considers it neccesary (S32(3))
- it must be exercised proportionally
- S32(3) - an authorisation is necessary on grounds of national secruity, preventing serious crome or in the interest of the economc wellbeing in of UK
23
Q
investigatory powers act 2016
investigatory powers act 2016 - english law restriction
A
- legalises methods of ‘snooping’ and hacking by security services in the interest of national secruity
24
Q
A8(2)
investigatory powers act 2016 - english law restriction
A
- sets up a framework for protecting against the abuse of the wide powers granted to secruity services
- it includes;
- combining the powers avaiable to law enforcement/secruity/intelligence agencies to obtain communications data
- introducing ‘double lock’ for interception warrants so that they cant come into force until they have been approved by a judge
- creating investigatory powers commissioner to oversee how these powers are used
- halford v UK - her private calls were intercepted by her employer, this is a breach as was not neccesary - just snooping
25
breach of confidence
| restrictions - breach of confidence - **english law restriction**
* infomation must be obtained in a way that gives rise to a duty of confidence
* must have the quality of confidence
* if unathorised could lead to the claimant suffering a detriment
* defences toa breach of confidence include if the infomation is already in the public domain or it was not confidential or it is in the publics best interest
* focus on balancing A8 v A10
* **Prince of wales v associated newspapers** - the newspaper secrety obtained and published extracts from prince charles diaries , was a breach
* **douglas v hello** - published unauthorised photos from a cleb wedding , already planned for wedding to go public , no breach
26
Official Secrets Act 1989
| restricition - **english law restriction**
* Some public servants are covered by a legal duty to NOT disclose sensitive information -
* security/intelligence workers (**S.1**),
* defence (**s.2**),
* international relations (**s.3**) and
* crime/special investigations (**s.4**).
* This means their A10 right to expression will be restricted but the A8 right upheld as they can’t be forced to tell about it (protecting private life)
27
protection from harrasment act 1997
| protections
* act covers a range including stalking , harrasment due to race or religion
* some types of anti social behaviour
28
scope of private life
| evaluation
* **Pretty v UK** - sets out physical and social identity, gender identification, name and sexual orientation
* It is not capable of a exhaustive definition
* No general right to privacy but article 8 protects some parts
* Case by case law
* Although the scope of the case is clearly intended to open up A8 to the broadest range of situations, it leads to uncertainties in the law
* Harder to define accurately
* And harder for the ECtHR to protect as it is so broad and impossible to protect everything
29
celebrities and private life
| evaluation
* Helps those who are vulnerable to this such as celebrities
* **Campbell v MGN , Weller v Associated newspapers , Cliff Richard v BBC** - all these cases have strengthened the rights to privacy
* The print media would argue that this creates a ‘chilling effect’ around freedom of expression, which may make newspapers less willing to engage in investigative journalism
* A gain under article 8 can be a loss in article 10
* The issue of proportionality and balancing competing competing rights demonstrated that human rights law is an area where simple answers are not easy to find
30
family life
| evaulation
* An extremely broad definition
* ‘Family’ has been interpreted in a flexible way which has changed to stay in touch with societal changes
* The idea of family is not simply based around the traditional arrangement of marriage but on ‘biological and social responsibility’ - **Kroon v netherlands**
* The idea that family include grandparents, adoptive children, foster relationships cohabitating couples and same sex relationships
* It has also been held to cover ongoing ties which carry on after divorce - **Berrehab v netherlands**
* ECtHR has said what constitutes a family depends on close family ties and is a matter of fact and degree - **Lebbink v Netherlands**
* The court is a living instrument
31
the environment
| evaluations
* **Kryatakos v Greece** - “neither article 8 nor any of the other articles of the convention are specifically designed to provide general protection of the environment as such”
* Such rights are regarded as ‘third generation rights’ - however in recent years there has been some movement by the ECtHR to cover such issues using the convention
* There are cases where the governments concerned have failed to properly enforce or regulate the law - **Lopez Ostra v Spain**
* There has been a casual link between pollution and the effect on the individual
* The ECtHR is reluctant to develop this aspect to far
* **hatton v uk** - a case about increasing light and noise pollution from heathrow airport , the court was reluctant to attach any special status to environmental human rights
32
technology - surveillance
| evaluation
* A highly continuous area is the extent to which the police and other authorities are allowed to collect, store and retain biometric and other data
* Has become extremely sophisticated in recent years and new technologies have been developed to help authorities
* Facial recognition
* A campaign group have argued that automatic facial recognition (AFR) is ‘an inherently oppressive and discriminatory surveillance tool’
* **R v the chief constable of south wales police** - had failed to adequately take account of the discriminatory impact of facial recognition technology
* Does not account for who they are actually finding and takes everyone's information
33
technology - DNA retention
* **S and Marper v UK** - said that the blanket retention of DNA was a breach of article 8
* This led to the government passing the protection of freedoms act 2012 - this set limits on blanket retention
* **Gaughran v UK** - where photographs , fingerprints and DNA, were retained after a conviction for drink driving
34
can lead to positive changes in society
| evaluations
* Protects the vulnerability of minority groups such as transgender rights
* **Bensaid v UK** - looks after both mental and physical wellbeing
* Protects the rights of those trying to kill themselves from having their images leaked ect - **Peck v Uk**
