Article 8 evaluation
Cases Article 8 – Right to respect for family and private life, home and
correspondence
(1) Connors vs UK
(2) McDonald v Qualified right –
State can interfere with the right if there’s a justified reason to
McDonald
do so
(3) Peck vs UK Then a decision whether the interference is lawful can be made
(4) Agyarco and Ikuga They judge this using the principles of proportionality and margin
(5) Johannsen v Norway or appreciation
(6) Yousef v Netherland Proportionality – court will consider the effectiveness of the
(7) Khatun vs UK interference related to its legitimate aim, how intrusive it was to
the individual, whether it strikes fair balance of interests etc.
(8) Barbalescu v Different states have different have different views about
Romania proportionality and there are even bizarre decisions in English
(9) Tele2 and Watson law (1, 2)
Margin of appreciation – controversial. Several factor impact and
individual state’s margin of appreciation. Doesn’t always evolve
with society such as the narrowing margin of appreciation
regarding transsexuals.
Law struggling to keep up with changes in society and its moral
views
The scope of private life –
Scope of private life is extremely wide and covers aspects like
dignity etc. It is ever expanding as the law develops over time. In
(3) it was stated that here’s no ‘exhaustive definition’ of private
life
CCTV images of man trying to commit suicide drew attention to
benefits of CCTV but also begs the question of the extent to
which the state has an obligation to legislate for the protection of
individuals
Scope of family life –
Range of relationships is continuing to develop and precisely
which relationships fall under this is unclear
Seen specifically in cases involving immigration rules which are
often inconsistent and therefore produce decisions which seem
to go against the idea of respect for family life
Case example of (4)
Interests of child are paramount (5, 6)
Meaning of family –
Meaning of home does not mean right to a house; this tends to
obscure the rights that are given under the Convention with
respect to enjoying your home peacefully
Investigation into the breach of this right must be put under
context of public protection
Decision in (7) is eminently sensible whilst decision in (2) seems
less sensible
Meaning of ‘correspondence’ –
Right of the state to collect, process and retain personal data
should be limited as it should be for all private enterprises
Individuals should receive adequate protection no matter what
State may claim legitimate aims but the individual is only
protected by the Data Protection Acts in the UK
Summary
Cases Article 8 – Right to respect for family and private life, home and
correspondence
(1) Connors vs UK
(2) McDonald v Qualified right –
State can interfere with the right if there’s a justified reason to
McDonald
do so
(3) Peck vs UK Then a decision whether the interference is lawful can be made
(4) Agyarco and Ikuga They judge this using the principles of proportionality and margin
(5) Johannsen v Norway or appreciation
(6) Yousef v Netherland Proportionality – court will consider the effectiveness of the
(7) Khatun vs UK interference related to its legitimate aim, how intrusive it was to
the individual, whether it strikes fair balance of interests etc.
(8) Barbalescu v Different states have different have different views about
Romania proportionality and there are even bizarre decisions in English
(9) Tele2 and Watson law (1, 2)
Margin of appreciation – controversial. Several factor impact and
individual state’s margin of appreciation. Doesn’t always evolve
with society such as the narrowing margin of appreciation
regarding transsexuals.
Law struggling to keep up with changes in society and its moral
views
The scope of private life –
Scope of private life is extremely wide and covers aspects like
dignity etc. It is ever expanding as the law develops over time. In
(3) it was stated that here’s no ‘exhaustive definition’ of private
life
CCTV images of man trying to commit suicide drew attention to
benefits of CCTV but also begs the question of the extent to
which the state has an obligation to legislate for the protection of
individuals
Scope of family life –
Range of relationships is continuing to develop and precisely
which relationships fall under this is unclear
Seen specifically in cases involving immigration rules which are
often inconsistent and therefore produce decisions which seem
to go against the idea of respect for family life
Case example of (4)
Interests of child are paramount (5, 6)
Meaning of family –
Meaning of home does not mean right to a house; this tends to
obscure the rights that are given under the Convention with
respect to enjoying your home peacefully
Investigation into the breach of this right must be put under
context of public protection
Decision in (7) is eminently sensible whilst decision in (2) seems
less sensible
Meaning of ‘correspondence’ –
Right of the state to collect, process and retain personal data
should be limited as it should be for all private enterprises
Individuals should receive adequate protection no matter what
State may claim legitimate aims but the individual is only
protected by the Data Protection Acts in the UK
Summary
