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Article 8-the right to respect for private and family life, home and correspondence
The Nature of the Article 8 Rights
Article 8 offers general protection for a person’s private and family life, home and correspondence from arbitrary interference by the State. This right affects a large number of areas of life ranging from surveillance to sexual identity - it is framed extremely broadly. Respect for private life includes a right to develop one’s own personality, as well as to create relationships with others. For example, Article 8 has been critical in providing basic protection for the rights of homosexual and transsexual people. It has also been used to extend protection to a person’s office space as well as his or her domestic home. More recently, in the English and Welsh courts, it has been recognised that a right of privacy may be enjoyed by a company as well as an individual.
Protection of private life and the home may also be relevant to decisions made in planning and environmental contexts. Permitting the carrying out of an unpleasant development nearby your home, for example a nuclear plant or waste site, which will severely affect your enjoyment of your property may be an interference with your rights under Article 8.
The Convention is often described as a ‘living instrument’. This means that the nature of Convention rights and the extent to which they should be protected will depend upon society’s values at any one time. With regard to Article 8, a very good illustration of this is the rights of transsexual people. Previously, the ECHR had decided that the United Kingdom’s failure to allow someone who had had gender reassignment surgery to obtain a new birth certificate altering their legal sex did not amount to a breach of Article 8 rights. However, they stressed that this would need to be reassessed in the light of any material changes in attitudes towards and scientific knowledge and insight into transsexualism. In July 2002, the ECHR decided that the time had come where such rights had to be recognised and found that the United Kingdom (UK) was in breach of its obligations under the Convention. This has resulted in new legislation from the Government which will allow persons with gender dysphoria to apply for a gender recognition certificate. A person in receipt of such a certificate will be entitled to be treated as of their new acquired gender for all purposes and will not generally have to reveal their biological sex at birth.
Restrictions on the Right to Privacy
However, the right to respect for these aspects of privacy under Article 8 is qualified. This means that interferences by the State can be permissible, but such interferences must be justified and satisfy certain conditions. Any interference with your right must be:
· In accordance with law; and
· In the interests of the legitimate objectives identified in Article 8(2); and
· Necessary in a democratic society.
In Accordance With Law
In many cases decided by the European Court of Human Rights (ECHR), interferences with privacy have been in breach of Article 8 because they have not satisfied this first condition. In order for an interference to be in accordance with law, the interference must have a proper legal basis, such as a piece of legislation or rules of a professional body. The law or rule must be understandable, detailed and clear enough to allow a person to regulate his or her behaviour - a secret, unpublished memo in a government department will not suffice, for example. Some well known scenarios involving interference that could not be justified under Article 8(2) have been the telephone tapping, or bugging, of individuals by the police using procedures and systems not authorised expressly by statute.
The Legitimate Objectives
The second condition that the interference must satisfy is that it must pursue an identified legitimate aim. The legitimate objectives set out in Article 8(2) are:
· Acting in the interests of national security, public safety or the economic well-being of the country.
· Acting for the prevention of disorder or crime.
· Acting for the protection of health or morals.
· Acting for the protection of the rights and freedoms of others.
These objectives are widely drawn and it will usually be easy for the government to say that the interference is in pursuit of one of these legitimate objectives unless there is clear evidence that the interference was for a clearly improper motive. In some cases it will be important to distinguish between a lawful interference in someone’s private life in the public interest, as opposed to an unlawful one which has occurred merely because it is something in which the public might be interested.
Necessary in a Democratic Society
Even if the infringement of privacy is in accordance with the law, and it is for one of the legitimate objectives, it must still be ‘necessary’ in order for it to be justified under Article 8. This is the third and most stringent condition that any infringement must satisfy, bringing in a requirement that the act must be ‘proportionate’.
The requirement of proportionality is often colloquially described as ‘not using a sledgehammer to crack a nut’. In essence, this means that the nature and extent of each interference must be judged against the end it is meant to achieve and any interference with your rights under Article 8 that goes further than is necessary may well be unlawful. For example, a blanket policy of excluding prisoners during examinations of their legally privileged correspondence was considered a disproportionate interference with their rights to privacy and correspondence under Article 8. Although the policy was intended to avoid prisoners disrupting or intimidating staff during searches, and this could be considered a legitimate objective, the blanket nature of the policy was disproportionate, as the same objective could be achieved by excluding only prisoners who attempt to intimidate or disrupt staff.
The more severe the infringement of privacy, the more important the legitimate objective in each case will need to be. In most cases, the interference will be judged against whether it meets a pressing social need, and the extent to which an alternative, less intrusive interference would achieve the same result.
The Duty of Public Authorities
The requirement on public authorities to act compatibly with Article 8 of the Convention is contained in Section 6 of the HRA. Section 6 provides that central government, local government and other public bodies such as the police and the courts must all act compatibly with your rights.
Public authorities are not only core public bodies such as government department, the police or local authorities, but also private bodies that perform functions of a public nature. So private companies transporting prisoners for the prison service, or a housing association providing social housing on behalf of a local authority may be considered to be performing functions of a public nature and so be bound by the HRA. However, this is a very complex area of law and it is not always obvious which bodies will be considered public authorities.
See HRA for more information on the duties of public authorities and what you can do if you consider that a public authority has breached your Convention rights.
The Human Rights Act 1998 only binds public bodies, and not individuals, so there still is no general right to protection from invasion of privacy by other individuals in society. This means that you cannot sue your neighbour, or a private company, for invading your privacy. However, because the courts are public authorities, and so have a duty to act compatibly with the Convention rights, and because of the obligation on courts to interpret statutory law compatibly with Convention rights wherever possible, if you have some other ground to bring a claim to court, then once you are before the court you can ask the court to protect your Article 8 rights, and the court will have a duty to do so if possible.
So celebrities who consider that a newspaper has breached their privacy by publishing photographs in situation where they have a reasonable expectation of privacy have been able to go to bring an action for breach of confidence, and then ask the court, as a public authority, to protect their right to privacy. See CONFIDENTIAL INFORMATION. But because of the reluctance to recognise a freestanding principle of protection from invasion of privacy, it is still necessary to pay close attention to the piecemeal protection that currently exists in general common law and different statutes in order to have a full understanding of the privacy rights you enjoy.