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?

  • despite the underlying crime being actual homosexual activity (rather than speech), which is only prosecutable as a result of their otherwise-protected speech? ??? Where the evidence comes from is not what makes an crime prosecutable or not. Where the evidence comes from can make the evidence inadmissible, but that does not change the crime and prosecution can continue if there is other evidence. And freely giving away the evidence (self-incrimination) does not in general make it inadmissible. – SJuan76 Oct 10 '19 at 9:41
  • If I rob a bank and then post in the internet the pictures that I took of myself robbing the bank, A) I can still be prosecuted for robbing the bank and B) most probably those pictures can be used as evidence against me. Free speech protects you from prosecution for what you say (i.e. the crime is not saying it*) but does not mean that what you say is not evidence ("everything you say may be used against you....") – SJuan76 Oct 10 '19 at 9:43
  • *And of course, as freedom of speech is not absolute, it is not a crime saying things... unless it specifically is a crime (libel, threats, child pornography...). – SJuan76 Oct 10 '19 at 9:49
  • Right, but in the above example, the activity isn't simply difficult to prosecute due to a lack of evidence without published record, but rather the state is prohibited from criminalizing the activity (as it falls within the realm of private life). I am asking if that "private life" protection is hypothetically ripped away, ex post-facto, should an account detailing the activity later be published (despite the same account being legal to publish, if it didn't actually happen). – JosephG Oct 10 '19 at 10:10
  • ^Given that Modinos v Cyprus and ADT v UK have held that the state may not prosecute for such activity, regardless of statute, since it fallse within the scope of Article 8 private life (unless it is not private). Meanwhile, Bayev v Russia says that promoting homosexual activity is protected speech under Article 10. – JosephG Oct 10 '19 at 10:12

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