Article 8 Right to a private and family life
Everyone has the right to respect for his of her private and family life, home and correspondence. This right is subject to proportionate and lawful restrictions.
Article 8 is a broad-ranging right that is often closely connected with other rights such as freedom of religion, freedom of expression, freedom of association and the right to respect for property.
The obligation on the State under Article 8 is to refrain from interfering with the right itself and also to take some positive measures, for example, to criminalise extreme breaches of the right to a private life by private individuals.
The concept of a right to a private life encompasses the importance of personal dignity and autonomy and the interaction a person has with others, both in private or in public.
Respect for one’s private life includes:
- respect for individual sexuality (so, for example, investigations into the sexuality of members of the armed forces engages the right to respect for a private life);
- the right to personal autonomy and physical and psychological integrity, i.e. the right not to be physically interfered with;
- respect for private and confidential information, particularly the storing and sharing of such information;
- the right not to be subject to unlawful state surveillance;
- respect for privacy when one has a reasonable expectation of privacy; and
- the right to control the dissemination of information about one’s private life, including photographs taken covertly.
Article 8 also provides the right to respect for one’s established family life. This includes close family ties, although there is no pre-determined model of a family or family life. It includes any stable relationship, be it married, engaged, or de facto; between parents and children; siblings; grandparents and grandchildren etc. This right is often engaged, for example, when measures are taken by the State to separate family members (by removing children into care, or deporting one member of a family group).
Respect for the home
Right to respect for the home includes a right not to have one’s home life interfered with, including by unlawful surveillance, unlawful entry, arbitrary evictions etc.
Respect for correspondence
Everyone has the right to uninterrupted and uncensored communication with others – a right particularly of relevance in relation to phone-tapping; email surveillance; and the reading of letters.
Article 8 is a qualified right and as such the right to a private and family life and respect for the home and correspondence may be limited. So while the right to privacy is engaged in a wide number of situations, the right may be lawfully limited. Any limitation must have regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.
In particular any limitation must be:
- in accordance with law;
- necessary and proportionate; and
- for one or more of the following legitimate aims:
o the interests of national security;
o the interests of public safety or the economic well-being of the country;
o the prevention of disorder or crime;
o the protection of health or morals; or
o the protection of the rights and freedoms of others.
The right to respect for a private life often needs to be balanced against the right to freedom of expression. For example a public figure does not necessarily enjoy the same respect for their private life as others, as matters of public concern might justify the publication of information about that person that might otherwise interfere with the right to privacy.
In 2003 a journalist and a peaceful protester were stopped and searched by police officers using powers under section 44 of the Terrorism Act 2000. As originally drafted section 44 allows police to stop and search anyone within a designated area without any need for suspicion of any kind. An area can be designated whenever the person making it (generally a police chief) ‘considers it expedient’ for the prevention of acts of terrorism.
The European Court of Human Rights held that this broadly drafted power breached the right to a private life. The Court held that a forced search of a person and their belongings clearly interfered with the person’s private life. As such, any limitation had to be shown to be in accordance with law, pursue a legitimate aim and be necessary and proportionate. In this case section 44 was held to fail the first test.
The Court held that the powers of authorisation and stop and search were not properly constrained and were not subject to adequate legal safeguards against abuse. The Court held that as “there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer” the power was not in accordance with law and therefore the limitation on the right to a private life could not be justified.