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. Private life
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.
Family Life – 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. Limitations – 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:
- the interests of national security;
- the interests of public safety or the economic well-being of the country;
- the prevention of disorder or crime;
- the protection of health or morals; or
- the protection of the rights and freedoms of others.
Balancing rights – 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.
Case study – Jenny Paton
In 2008, Poole Council received an anonymous tip-off that Jenny Paton’s family were lying about living in a certain school catchment area. In reality they’d lived at the property in question for more than 10 years. Nevertheless, the local authority saw fit to subject them to covert, James Bond-style surveillance.
For three weeks officials sat outside their home, making notes and taking photographs – and even tailed Jenny, and partner Tim, while they drove her children to school. The family had no idea – until the surveillance was revealed at a meeting with the Council’s Children and Young People’s Department.
The Investigatory Powers Tribunal found that Poole Council had breached Article 8. “I felt justified in my outrage,” Jenny said. “I felt that the action I’d taken had been worth it – not for me personally, as such, but it did lead to changes in legislation that I felt made the whole battle worthwhile.”