What does it mean to have the right to respect of private and family life and when will this come into play?

Article 8 of the European Convention on Human Rights

Article 8 of the European Convention on Human Rights provides general protection for a person’s private and family life, home and correspondence by the State.

Does this protection extend to the laws of England and Wales?

The provisions of the European Convention on Human Rights exist under the laws of England and Wales due to them being given effect by the Human Rights Act 1998.

What areas of my life could be protected by Article 8 ECHR?

Article 8 ECHR affects a vast number of areas of life and can be used in claims against private surveillance of an individual’s home or even computer and extend to the area of sexual identity. The provisions contained in Article 8 have therefore been framed in as broad a way as possible.

Examples of areas of life which have been provided with protection by Article 8

Article 8 ECHR has been an extremely valuable tool in providing protection for the rights of homosexual people but has also been used in a much more general context to provide protection to an individual person’s home.

In what other contexts has Article 8 been used?

Article 8 has not simply been used to protect lifestyles or private aspects of people’s lives it can also be used in relation to environmental or planning contexts. For example if an unpleasant development has been carried out near your home you may be able to claim that this is an interference with Article 8 as it severely affects your enjoyment of your home.

If I claim a violation of my right to privacy will I always be able to be successful?

The right to respect for private and family life is not always a guaranteed right as it is a right which is qualified.

What does it mean if a right is qualified?

If a right is said to be qualified it will mean that an infringement of it is permissible in certain circumstances which can be justified and adhere to specific conditions.

In what circumstances will interference be permissible?

Any interference with your right to privacy and family life will be permissible if the following conditions are satisfied:

  • If an interference is in accordance with law

  • If an interference is in the interests of the legitimate objectives identified in Article 8(2)

  • If an interference is necessary in a democratic society

In accordance with law

When will an interference be in accordance with law?

An interference in relation to your right to private or family law will be in accordance with law if it has a proper legal basis – for example if it is provided for by state legislation or in the rules of a professional body.

Furthermore the rule or law must be understandable, detailed and clear to enable a person to regulate his or her behavior.

Often many interferences with the right to respect for private and family life of individuals falls foul of this first requirement to be in accordance with the law and are therefore seen as a restriction in breach of Article 8 – certain methods of police telephone tapping not provided for by statute have been a good example of this.

Legitimate Objectives

What are the legitimate objectives specified by Article 8(2)?

The legitimate objectives specified by Article 8(2) are as follows:

  • 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 and morals

  • Acting for the protection of the rights and freedoms of others

Due to these legitimate objectives being extremely wide it is usually fairly straight forward to the state to prove that the actions were in accordance with one of the above objectives unless there is unequivocal evidence to the contrary.

Necessary in a democratic society

When will an interference be necessary in a democratic society?

Even if the first two elements have been proven, i.e. that it is in accordance with the law and that the objective is legitimate it is still requirement for it to be proven that the interference was necessary in a democratic society – this is the most stringent condition to be proven.

In order to prove whether interference with Article 8 is necessary in a democratic society it must be proven that the interference was proportionate.

How can an interference be proportionate?

An interference with someone’s rights would be regarded as proportionate as when judged against the means for which it was trying to achieve it has not gone beyond what was required to achieve that means.

Accordingly if an infringement of your rights is in accordance with the law as it is provided for by statute falls within a legitimate objective it can still be held to be unlawful if the infringement goes further than what was necessary.

This final element will have to be judged on a case by case basis.

What protection does the Human Rights Act give to Article 8 in England and Wales?

Public Authorities

Section 6 of the Human Rights 1998 provides that public authorities must act in accordance with Article 8 of the European Convention on Human Rights. Accordingly this means that central government, local government and other public bodies such as the police and the courts must act in accordance with the rights specified in Article 8. This requirement will also apply to private bodies performing functions of a public nature.

What is the case in relation to private bodies and individuals?

It is only public authorities which are bound by the Human Rights Act 1998 meaning that there is no right for protection from an invasion of privacy by other individuals in society. However, if you can bring your claim to court against a private individual on other grounds then the court as a public authority will have a duty to protect your Article 8 rights.

Will something now not considered a violation of Article 8 always be the case?

Article 8 is an instrument which is continually evolving with a lot dependent upon the values of society at any given time meaning that something which may not be considered a violation of Article 8 at one time does not necessarily mean that this will be the case in the future – a good example of this is the rights of transsexual people.