article 8

• article 8 is the right to respect for family and private life
• 8(1) - everyone has the right to respect for his private and family life, home and correspondence
• 8(2) - there shall be no interference by a public authority except if it is accordance with law, necessary in a democratic society and in the interest of national security, protection of health and morals etc
• article 8 is a qualified right meaning there needs to strike a balance between the rights of the individual and the rights of the community - the state can limit this if in accordance with the law and if to meet a legitimate aim.
• article 8 is a negative right however it has been interpreted in a way that gives the state positive obligations to protect a person's right to respect for family and private life
• article 8(1) covers 4 rights

  family life

  private life

  home

  correspondence
• A8(2) restrictions

  • in the interests of national security
  • for the public safety
  • prevention of disorder or crime
  • protection of health and morals
  • for the protection of the rights and freedoms of others
• to decide if it is necessary in a democratic society then proportionality and margin of appreciations are used to decide
• family life - includes different types of family relationships such as children, grandchildren, adopted children etc
• johansen v norway - the rights of the child are paramount
• removal from the state - removing people who have a family life can cause issues with immigration rules
• agyarko and ikuga v home dept - only allowed to remain in the state if there are 'insurmountable obstacles in the way'
• nasri v france - the state can sometimes deport criminals but wont always
• private life - includes a 'persons physical and psychological integrity' - will include their name, reputation, gender etc - BOTTA v ITALY
• police searches may be justified if the aim is to prevent crime or uphold national security
• gillan and quinton v UK - searches must have a legal basis and be proportionate
• halford v UK - surveillance such as listening to peoples phone calls is a breach of A8
• Medical data is considered confidential and personal for both adults and children who are considered Gillick competent
• Axon v Secretary of state for health - medical records of children under 16 are confidential if child is Gillick competent
• S and Marper v UK - violation of A8 for police to keep innocent peoples DNA indefinitely
• press intrusion can be justified if in the interests of justice according to A10

  courts will try to balance the freedom of the press with the right to privacy
• Campbell v MGN ltd - if not in the public interest then A8 wins
• Flitcroft v MGN - neither article has preference over the other
• Murray v express newspaper PLC - children of famous people shouldnt be photographed without consent and knowledge
• Harassment Act 1997 - criminal offence to pursue a course of conduct amounting to harassment

  it is also a crime when the conduct puts the victim in fear of violence

  the act includes racial and religious harassment

  • it is a summary offence and can get up to six months as a punishment
• malicious communications act 1998 - act covers the sending of letters or article of any description which convey a grossly offensive message
• Home - given a wide definition and can include where you live permanently or where you live sometimes (second home)

  the law treats owners and occupiers of property equally - KHATUN vs UK
• Niemietz v Germany - home can include the work place
• Correspondence - includes telephone calls, texts, emails etc

  if that state wants to interfere with any of these things they require justification under A8(2)
• investigatory powers act 2016 - allows the security services a range of powers including hacking and other forms of surveillance to protect public
• Barbulescu v Romania - policies must state levels of restriction - cannot be too heavily monitored under A8 rights