privacy human-rights freedom-of-speech european-court-of-human-rights
Does the European Convention on Human Rights protect from infringements arising as a result of exercising rights in conjunction?
<p>I was reading the cases of <a href="http://hudoc.echr.coe.int/eng?i=001-57834" rel="nofollow noreferrer">Modinos v. Cryprus</a> and  <a href="http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&amp;id=001-88690&amp;filename=001-88690.pdf" rel="nofollow noreferrer">Pay v United Kingdom</a>, and am confused regarding the interaction of Article 8 private life &amp; Article 10 freedom of expression.</p>

<p>In Modinos v Cyprus, it was held that criminalising homosexual relations is a violation of Article 8 of the ECHR. Meanwhile, in Pay v UK, it is suggested that publishing images of sexual acts may mean that the activity is not part of one's private life.</p>

<p>What happens, however, when someone’s expression (protected by article 10) leads to a lack of protection under article 8, resulting in criminalisation?</p>

<p>For example: Suppose a state criminalises homosexual activity.
Expressing support for &amp; educating regarding homosexual activity is protected by Article 10. Homosexual activity itself is protected by Article 8. </p>

<p>What happens if one both engages in homosexual activity and publicly documents their engagement for advocacy purposes? Are they left without protection as a result of their free expression rendering their activity outside of the scope of private life? Or does Article 10 freedom of expression protect them from prosecution arising as a result of their speech, despite the underlying crime being actual homosexual activity (rather than speech), which is only prosecutable as a result of their otherwise-protected speech?</p>

<p>In <em>MODINOS v. CYPRUS</em> it was held that the mere existence of a law on the books criminalizing male homosexual conduct was a violation of article 8 of the European Convention on Human Rights (ECHR) and Article 15 of the Constitution of the Republic of Cyprus. This finding was made although no prosecutions under such a law had been carried out in some years, and the policy of the Attorney-General of Cyprus was that there should be no such prosecutions.</p>
<p>Note at the time of this case Mr Modinos  held the position of 'President of the &quot;Liberation Movement of Homosexuals in Cyprus&quot;', so his sexual preferences were not exactly secret -- this being one reason he was fearful of future prosecution under the Cyprus law.</p>
<p>This publicity did not deprive him of he protection of ECHR article 8 or of the Cyprus Constitution article 15, both of which protect &quot;private life&quot;. It would seem that ECHR article 8 is not being interpreted as a &quot;don't ask, don't tell&quot; policy, where publicity to one's sexual prefernces or acts would void its protection.</p>
<p>Thus it would seem, under that case, that publication of texts or images making a person's sexual activities or preferences clear would not deprive them of protection as an element of &quot;private life&quot;. Whether actually having sex in public would be subject to prosecution I do not speculate.</p>
