Every individual benefits from a general right to respect of their private and family life, home and correspondence by virtue of Article 8 of the European Convention on Human Rights (ECHR). The ECHR is an international convention to which the UK is a party. The rights under Article 8 are given effect by the UK’s Human Rights Act 1998 (HRA) which applies to England, Wales, Scotland and Northern Ireland.
What areas of a person’s life are protected by Article 8?
Article 8 touches on many aspects of a someone’s life, both in private and in the workplace. It can be relied on in legal claims following, for instance, private surveillance of an individual’s home or computer, and in many other legal areas including criminal and family law, and employment matters. It also extends to areas of sexual identity and gender and has proved a valuable tool in protecting the rights of homosexual people, as well as the rights of patients under the Mental Health Act. Prisoners have also successfully brought claims for breach of their Article 8 rights.
Article 8 has also been used in relation to environmental and planning disputes. For example, if an ill-thought out development has been carried out near your home with unpleasant results for your family, you may be able to claim that this amounts to an interference with your Article 8 rights because it severely affects your enjoyment of the family home.
Are a person’s Article 8 rights absolute?
No, your right to respect for private and family life is not an absolute right, it is ‘qualified’. This means other rights may come first – so your Article 8 rights may be lawfully infringed when it is justified in certain circumstances. For example, a public authority may interfere with your rights if doing so is in the interest of the wider community or to protect the rights of another individual.
Protection under the Human Rights Act
Public authorities, such as central government, local government, the police and the courts are required by law to act in accordance with Article 8 (as required by section 6 HRA). This also applies to private bodies performing the functions of a public nature.
However, individuals have no legal protection from an invasion of privacy by other individuals in society. That said, if you can make a legal claim against a private individual on other grounds – the court, as a public authority, will have a duty to protect your Article 8 rights.
When can my Article 8 rights be interfered with?
Any interference with your right to privacy and family life will be permissible if the following conditions are satisfied:
- The interference is in accordance with the law
- The interference is in the interests of the legitimate objectives identified in Article 8(2)
- The interference is necessary in a democratic society
In accordance with the law: the interference must have a proper legal basis, for example, under statute, common law or under the rules of one of the professional bodies. Without a proper legal basis for interference, an individual can rely on their Article 8 rights.
Legitimate objectives: the legitimate objectives under by Article 8(2) are four-fold:
- 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
For a public authority, for example, demonstrating that the actions/omissions were in accordance with at least one of the above objectives will normally be straightforward.
Necessary in a democratic society: this is the most stringent condition a public authority must satisfy. To prove whether interference with Article 8 is necessary in a democratic society it must be shown that the interference was proportionate.
When can an interference be considered proportionate?
An interference with someone’s Article 8 rights may be considered proportionate if the means by which it was trying to achieve its aim has not gone beyond what was required to achieve that aim.
This means that an infringement of your rights may be in accordance with the law if it is permitted by statute and satisfies the ‘legitimate objective’ requirement – but could be unlawful and breach Article 8 if such infringement goes beyond what was necessary. Whether or not an interference is proportionate would be decided on a case by case basis.