These are exam notes for all the materials covered in the course, sectioned into 5 main areas- human rights, application of human rights online, right to privacy v right to data protection, application of the GDPR and application of the Police Directive 2016/680. I recieved a grade 10 in the exam ...
Where right applies: Ratione Loci
Rule: Extra-territorial application of HRs for acts/omissions of state authorities
ECHR
Art. 1 ECHR
‘Everyone within their jurisdiction’
Extra-territorial jurisdiction
1. ‘Effective control’ and
2. Legal Space [limitation]
‘Effective control’
-The fact of exercising control over territory or people
Bancovic [2001]
Legal Space Test
Facts:
-Airstrike where NATO bombed parts of former Yugoslavia
-No boots on the ground
QOL:
-Are airstrikes ‘effective control?’
Judgement:
[Para 71]: Exceptional character
-Extraterritorial jurisdiction under Art. 1 is exceptional
[Para 80]: Legal Space Test [‘espace juridique’]
1. Legal Space
-ECHR: regional treaty: operates in legal space of Contracting States
2. Legal Vacuum
-Territory in question must be one that, but for the specific circumstances
[‘effective control’], would be covered by ECHR
-Avoids a vacuum in human right protection
Result: Former Yugoslavia: not within legal space of the ECHR: no
extraterritorial application
Al Skeini [2011]
Legal space test abandoned?
Judgement:
-UK exercised ‘effective control’ over Iraq
-Not in legal space test but accepted extraterritorial jurisdiction
-BUT Boots on the ground
EU CFRs
Art. 51 Charter
-CFRs applies when implementing EU law: usually within EU
Extraterritorial jurisdiction?
Schrems II [2020]
-CJEU invalidated EU-US Privacy Shield for violation of GDPR read in light of CFRs
Who has to protect rights: Ratione Personae
Rule: Sometimes state has positive obligation to protect individuals from acts/omissions of natural &
legal persons
ECHR: Natural persons
Focus: Art. 2: Right to life
Osman v UK [1998]
Criminal acts of individuals
Facts:
, -Applicant: Husband was killed by her sons former teacher and her son seriously wounded
QOL:
Violation of Art. 2 ECHR?
Judgement:
[Para 115]: Positive Obligation under Art.2
-Positive obligation on the authorities
-Take preventative operational measures to protect individual whose life is at risk from
criminal activities of another
[Para 116]: Limitation to Positive Obligation
-Obligation cannot impose an impossible/disproportionate burden on authorities;
1. Difficulties policing modern societies
2. Operational choices: made in terms of priorities and resources
3. Police exercise powers respecting due process [fair treatment]
[Para 116]: The Osman Test
- Authorities violated their positive obligation to protect right to life if:
1. Knew or ought to have known
2. Existence of real and immediate risk to individual’s life from criminal acts &
3. Failed to take reasonable measures within their power to avoid the risk
Conclusion
-The police did not know or ought to have known
-Lives of Osman family were at real and immediate risk from the teacher
-No violation of Art. 2 ECHR
ECOWAS: Legal persons
Focus: Art. 24: Right to a satisfactory environment
ECOWAS, SERAP v Federal Republic of Nigeria [2012]
Environmental damage by Corporation
Facts:
-Activities of oil industries causing oil spillages in Niger Delta [river]
QOL:
Violation of Art. 24 ACHPRs?
Judgement:
[Para 100]: Art. 24 is an obligation of attitude and an obligation of result
[Para 103]: Measures taken by Nigeria: numerous laws passed regulating oil
industry & creation of agencies to ensure the implementation of the laws [attitude]
[Para 110]: No action taken to hold accountable any of perpetrators [result]
[Para 111]: Violation by Nigeria of Art. 24
Part 1: Interpretation principles
ECHR Interpretation Principles
1. Autonomous meaning of ECHR terms
-Not necessarily same as domestic law
2. Principle of Effectiveness
-Actual protection of the right in practise [teleological]
3. Evolutive Interpretation
-‘Living instrument’: societal & technological changes
4. Internal consistency between provisions
-ECHR must be read as a whole
5. Margin of appreciation
-Wider where it is a sensitive issue or there is not much consensus
6. European Consensus/Comparative/International law
-Consensus between CoE MSs
Focus: Article 12 ECHR: Right to marry
Schalk and Kopf v Austria [2010]
Facts:
Applicant: Wants to enter into same sex marriage
Austrian law: marriage only between persons of opposite sex
, Marriage between persons of same sex is null and void
Judgement:
Interference?
Para 52: Evolutive Interpretation
-Christine Goodwin, ‘men and woman’: not just biological criteria: includes self-assigned
gender for post-operative transexuals
Para 55: Internal consistency/grammatical
-Art. 12 refers to ‘men and women’
-All other ECHR Articles grant rights to ‘everyone’ or state ‘no one’ should be subjected
-Choice of wording in Art.12 is deliberate
Para 58: Evolutive but no European Consensus
-Institution of marriage: major social changes since ECHR adoption
-BUT no European Consensus for same-sex marriage: 6/47 Contracting Parties allow
Para 60: Comparative [Art 9 EU Charter]
-Art. 9 CFRs dropped reference to ‘men and women’: decision to allow same sex marriage
Para 62: Wide margin of appreciation
-Marriage has deep-routed social and cultural connotations
-Court will not rush to substitute its own judgement for that of national authorities who are
best placed to assess and respond to the needs of society
Para 63: Conclusion
-Art. 12 ECHR doesn’t impose an obligation on Contracting States to grant access to same-sex
marriage
=No interference with Art.12 ECHR
Margin of Appreciation
1. No substitution
-ECrHR will not rush to substitute its own judgement for that of national authorities
-National Authorities are best placed to assess and respond to the needs of society
-ECrHR checks decisions with ECHR
2. Wideness of margin
A. Consensus
-Less consensus among Contracting States: wider the margin
B. Sensitive issues
-More sensitive the issue: wider the margin
Part 2: Interference with specific human rights
Right 1: Freedom of Expression [& to hold opinion]
Where:
1. Article 10: ECHR
2. Article 11: EU Charter
Scope:
1. Internal: Freedom to hold opinions
2. External: Freedom to receive & impart information
Interference:
1. Offensive ideas
ECtHR, Handyside v UK [1976]
-[para 49]:
-FoE applies to information that offends, shocks or disturb the state or a sector of population
-Without pluralism, tolerance & broadmindedness there is no democratic society
2. Copy-righted materials
, ECtHR, Pirate Bay
3. Porn
4. Poster Campaign
ECrHR, Movement Raelian Suisse
5. Primary role of press: Public watchdog
ML & WW v Germany
[Para 89]
-Essential role played by press in democratic society: receiving & imparting information
6. Secondary role of press: Internet archives
ML & WW v Germany
[Para 90]
-Preserving & making information available
-Educational & historical research: readily accessible to public & generally free
Right 2: Right to Privacy
Where:
1. Article 8: ECHR
2. Article 7: EU Charter
Scope:
1. Internal: Right to be left alone
2. External: Right to develop relationships with others
ECrHR, S & Marper v UK [2008]
[Para 66]:
-Right to privacy applies when developing relationships with other human beings/outside world
Interference:
S & Marper v UK [2008]
Facts:
-Applicants: Both arrested for criminal charges but acquitted
-Fingerprints, cellular samples & DNA profiles were retained
- Asked this information be destroyed but police refused
QOL:
-Interference with right to privacy under Article 8 ECHR?
Judgement:
[Para 71]: Back of mind…
-Rapid development in field of genetics & technology
- Future private-life aspects may be affected in new ways that cannot be anticipated today
[Para 77 & 86]
-Retention of fingerprints, cellular samples & DNA profiles=interference with private life
Right 3: Right to Effective Remedy
Where:
1. Article 13 ECHR
2. Article 47 EU Charter
Interference:
Need national forum for human rights violations
-Quicker & cheaper
Right 4: Equality & principle of non-discrimination
,Where:
1. Article 14 ECHR
-Optional protocol 12 ECHR
2. Article 21 CFRs
ECrHR, Schalk & Kopf v Austria
QOL:
Is denying same-sex marriage a violation of Article 14 Inc/w Article 8?
Judgement:
Applicability of Art 14 Inc/w Art 8
[Para 89]: Complementary
-Art.14 complements other provisions of the ECHR/protocols
- Facts must fall within ambit of other ECHR right
- Application autonomous to extent that it doesn’t presuppose breach of other provision
[Para 95]: Application
-Facts fall within ambit of ‘private life’ & ‘family life’: Art 14 Inc/w Article 8 applies
Interference with Art. 14 Inc/w Art 8?
Argument 1: No Access to Marriage
[Para 101]:
-Art. 12 ECHR doesn’t impose an obligation to grant same sex
couples access to marriage
-Article 14, a provision of more general scope, will not
Argument 2: No Alternative Legal recognition?
-Now Registered Partnership Act in Austria
[Para 105]: Should alternative legal recognition have been earlier?
No EU Consensus
-No majority of states providing legal recognition of same-sex
couples
-wide margin of appreciation
[Para 108]: Differences conferred by the status of marriage &
Registered Partnership
Margin of appreciation
-Wide margin of appreciation regarding exact status
-No obligation to confer a status which corresponds to
marriage
Conclusion:
-No interference with Article 14 inc/w Article 8
Additional Protocol 12 ECHR: Non-discrimination
Ratified Protocol: non-discrimination is autonomous
No ratification: use Article 14 Inc/w…
Part 3: Restricting Human Rights
Restrictions in ECHR
1. Prescribed by law
A. Legal basis in domestic law
B. ‘Quality Law’: Accessible and Foreseeable: Clear & detailed rules & minimum safeguards
2. Pursuing a legitimate aim
-Exhaustive
3. Necessary in a democratic society
Margin of appreciation doctrine
-State discretion to decide what is a pressing social need & what is proportionate in specific country
[1] Pressing social need
-Reasons should be ‘relevant & sufficient’
[2] Proportionality to legitimate aim
-Balancing interests at stake
-‘Adequate safeguards’
, ECrHR, S & Marper v UK [2008]
QOL: Violation of right to privacy under Art. 8 ECHR?
Prescribed by law
1. Legal basis in domestic law
-Section 64 PACE
2. ‘Quality law’
-[Para 99]:
-State measures need to have clear detailed rules and minimum safeguards
-UK legislation broad BUT court doesn’t assess
Legitimate aim
-Detection and prevention of crime
Necessary in a democratic society
Proportionality to legitimate aim
[1] Balancing competing interests
-Right to privacy v detection & prevention of crime
[2] [Para 119]: ‘Adequate safeguards’
-Blanket and indiscriminate nature of power of retention
-No adequate safeguards against abuse by public authorities
-Need sub-categories & distinctions:
[1] Seriousness of offence
[2] Age of the suspect
[3] Acquitted individuals
Conclusion
-No balance struck between right to privacy and the detection & prevention of crime
-Violation of Art. 8 ECHR
ECrHR, Movement Raelien Suisse v Switzerland [2012]
Facts:
-Applicant: National branch of the Raelian movement
-Public authorities prohibited their poster campaign based on website
-Reasons:
1. Human cloningHyperlink to Cloniad website
2. System of governmentGeniocracy: power to highest level of intellect
3. Sensual MeditationAdvocated paedophilia
QOL: Violation of Freedom of Expression under Art. 10 ECHR?
Judgement:
Interference
-[Para 49]: Banning a poster campaign
Prescribed by Law
-Yes
Legitimate aim
-Morals
Necessary in a democratic society
Margin of appreciation
-State discretion to decide what is a pressing social need & what is proportionate
Public Space
-No unlimited right to use public space for advertising that harms morals
Type of speech
Political speech= Narrow margin
Commercial speech=Wide margin
Website ≠ Political speech
Website=Commercial speech
[1] Pressing social need
-Geniocracy, cloning & possible sexual abuse of minors
[2] Proportionate to legitimate aim
-Website & association not banned
-Can distribute leaflets
Conclusion: Wide margin of appreciation & no violation of Art 10 ECHR
1. Concurring Opinion: State regulates strictly
No unlimited right to use public space for advertising
2. Dissenting Opinion: Neutral space to expose different views
Neutrality from state: equal access for individuals/entities
State may have to ban associations that seriously contravene democratic values
However, a lawful association, with a lawful website should be able to promote its ideas
through posters
Hyperlink
Court did not discuss hyperlink, but accept Cloniad as a ‘relevant and sufficient’ reason
Dissenting Opinion [Judge Albuquerque]
Narrow margin of appreciation: Information disseminated via the internet
No liability for ‘hyper-linker’ based on illegal content of the hyperlinked webpages except
1. They are in control of hyperlinked webpage or
2. Have endorsed the illegal content
Linking is not endorsement, additional elements are necessary to prove the mens rea
Margin of appreciation
Dissenting Opinion [Judge Albuquerque]
≠ Commercial Speech?
1. Profit
-Non-profit association
2. Profit from Cloniad
-Association never gained profit from cloning services
Political Speech?
Geniocracy
-Geniocracy has clear political connotation
-Narrows margin of appreciation
Restrictions in the EU Charter
Focus: Rights in the Charter limitation clause under Art. 52 [1] and [3]
Article 10 [2] ECHR Article 52 [1] EU Charter
-Prescribed by law -Provided for by law and
-Not in the text but the ECHR but in its case law the -Respects the essence of those rights and freedoms
ECHR does respect the essence of those rights and
freedoms too
-Necessary in a democratic society -Subject to the principle of proportionality, limitations
may be made only if they are necessary
-Exhaustively prescribed legitimate aims -Genuinely meet objectives of general interest
recognised by the union or the need to protect the
rights and freedoms of othersNot exhaustive
Article 52 [3] EU Charter
1. Right in the EU charter that is in ECHR
2. Scope and limitations need to be the same
3. However, EU law can provide higher protection-
can never go lower
,Application of human
rights online
, Freedom of Expression Online
Internet Shutdowns
ECOWAS, Amnesty International & Ors v The Togolese Republic [2020]
Facts:
-Total shutdown of the internet during mass protests in Togo
Judgement:
Interference?
QOL: Does access to internet fall within the scope of FoE?
Derivative right [para 38]
-Access to the internet is not a human right
-Derivative right: platform that enhances the enjoyment of FoE
Justification?
QOL: Total internet shutdown justified?
Togos argument:
-Legitimate aim: National security: protests could lead to civil war
ECOWAS Judgement:
-National security is a legitimate aim for interference with FoE
-However: Togo shutdown the internet of the whole country without a legal basis
Conclusion
=Violation of Art. 9 African Charter
Blocking & filtering websites
‘Victim Status’ admissibility: Blocking access to website
ECrHR, Cengiz v Turkey [2015]
[Para 49]: Victim status on internet
- No action popularis ECHR: need to be directly affected by state act/omission
-Criteria for applicant to be a victim of a measure blocking access:
[a] The way the person uses the website
+
[b] Potential impact of the measure on their right to receive & impart information
Chilling Effect [on press freedom]
1. Judge: balances effect of measure/judgement on others pursuit of FoE
2. ‘Chilled’ from pursuing because you fear punishment
3. Severe chilling effect may be a violation of Art 10 ECHR
ECrHR, Times Newspaper Ltd
[Para 15]: ‘Chilling effect’
- Defendants argument: Chilling effect on willingness of newspapers to
provide Internet archives: limits their freedom of expression
Collateral Effect:
Rule: Blocking order restricting freedom of expression given by a judge which has severe collateral
effects might be a violation of Art. 10 ECHR
1. Judge: balances effect of measure/judgement on rights of others to FoE
2. Collateral effects should be avoided
3. Severe collateral effects may be a violation of FoE
ECrHR, Ahmet Yildirim v Turkey
[para 64]: Judicial review
-Judge: weigh up collateral effects before taking a blocking measure
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