HRA - Article 8 and 10 Flashcards
(19 cards)
What is protected under Article 8? What kind of right is it?
Right to private life, family life, home and correspondence
Qualified right
How does the ECtHR approach the concept of private life?
Categories of private life are not closed nor neatly defined - concept has been given a very wide meaning
Includes even ‘physical and moral integrity’ and ‘‘personal identity’’
When do states have a particularly wide margin of appreciation?
When regarding matters of allocation of resources
What kind of issues are engaged by article 8?
Sexual orientation
Stop and search - engages art 8, but does not automatically breach it
State surveillance
Family life in immigration cases
When can the state interfere with article 8 rights?
Interference is in accordance with the law, in pursuit of a legitimate aim, proportionate
When has the ECHR afforded a particularly high degree of protection to correspondence?
To prisoners’ correspondence - actual reading of a prisoner’s mail should only be allowed if authorities believe that this is being abused - even more so, with a solicitor.
What are some of the legitimate aims under which qualified rights can be interfered with?
National security - sizeable margin of appreciation
Economic will being
Prevention of disorder or crime
Protection of health and morals
What does Article 10 protect? Is it qualified?
Freedom of expression
Yes
What kind of things can freedom of expression protect?
Political opinion
Journalistic freedom
Artistic expression
Commercial information
right to receive information
In practice - political and journalistic expression gets more protection than any other form of expression
Under what legitimate aims can freedom of expression be restricted?
National security
Prevention of disorder or crime
Protection of health or morals - wide margin of appreciation
Protecting the reputation or rights of others
Maintaining the authority and impartiality of the judiciary
When can a protest be pre-emptively restricted before it has caused any disorder?
Only if there is a reasonable apprehension of a sufficiently imminent breach of the peace
How does the HRA bolster Article 10?
S12 HRA says that courts and tribunals must have particular regard to freedom of expression
How has the court approach Article 10 violations in terms of religion and blasphemy?
Wide margin of appreciation to allow for states individual religious nuances here.
Has also even allowed particular allowances for sub-national levels e.g. particularly religious parts of a country, etc.
Duty to avoid gratuitous offence
How has the ECtHR approach forms of expression which express racist sentiments?
Lower degree of protection for forms of expression which include racist comment / support terrorism
What is the indirect horizontal effect of the Human Rights Act?
Arises from 6(3) - courts and tribunals are public authorities and therefore have a duty to develop the common law in accordance with the demands of the Convention
Courts as a public authority cannot act in a way incompatible with a Convention right
What are the two elements needed for a misuse of private information claim?
Was there a reasonable expectation of privacy?
Balancing exercise between rights of article 8 and article 10
What is the test for whether there is a reasonable expectation of privacy?
1) is the information obviously private?
2) Would a reasonable person of ordinary sensibilities if placed in the same situation, find the disclosure offensive?
REP will only operate if information is private not public - but sometimes ‘public’ acts can become private depending on circumstances
What does the court consider in the balancing exercise between articles 8 and 10?
Contribution that information in the public domain makes towards debate of a general interest - considerations of open justice will weigh quite heavily here
What are the five criteria considered in the balancing act of article 8 versus article 10?
Does information contribute to a debate of general interest?
How well known person is + subject matter of the report
Prior conduct of the individual concerned
Form and consequences of the publication
Circumstances in which photos were taken - consent?
