Does the European Convention on Human Rights protect from infringements arising as a result of exercising rights in conjunction?

Question

I was reading the cases of Modinos v. Cryprus and Pay v United Kingdom, and am confused regarding the interaction of Article 8 private life & Article 10 freedom of expression.

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.

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

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

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?

Answer 1

In MODINOS v. CYPRUS 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.

Note at the time of this case Mr Modinos held the position of 'President of the "Liberation Movement of Homosexuals in Cyprus"', so his sexual preferences were not exactly secret -- this being one reason he was fearful of future prosecution under the Cyprus law.

This publicity did not deprive him of he protection of ECHR article 8 or of the Cyprus Constitution article 15, both of which protect "private life". It would seem that ECHR article 8 is not being interpreted as a "don't ask, don't tell" policy, where publicity to one's sexual prefernces or acts would void its protection.

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 "private life". Whether actually having sex in public would be subject to prosecution I do not speculate.