Article 8: Right to Respect for Private and Family Life

What does Article 8 cover?

The right to respect for your private and family life, your home and your correspondence.

What are the limitations on these rights?

Interference in this right must be:
•In accordance with law
•Necessary in a democratic society for the following reasons:

National security, private safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, protection of the rights and freedoms of others.

Is this the article that Max Mosley relied upon to try to protect his right to sexual play-acting?

Yes. The case illustrates the relation of this article, the right to privacy, with the right of freedom of expression, protected by Article 10. As a topic, this will be further covered later. Mr Mosley’s case to the European Court was that Article 8 (linked with the right to an effective remedy, Article 13) placed a positive duty on the state to protect his privacy. He wanted a legally binding requirement of pre-publication notification on a paper like the News of the World that was imminently going to publish an article on someone’s private life. He said that the £60,000 that he had already received in compensation (plus £420,000 in costs) for breach of his Article 8 rights was insufficient to restore his reputation: he should have had rights in advance of any breach.

This case was a potential minefield for the European Court, the authority of which is being challenged by the UK government and media. It skipped nimbly through the difficulties. The court argued that the UK was entitled to sufficient ‘margin of appreciation’ to escape the onerous obligations demanded by Mr Mosley. It noted that a recent Parliamentary inquiry by the Culture, Media and Sport committee had come out against such a requirement. Other remedies existed and pre-publication disclosure would have a chilling effect on press freedom.((Mosley v UK [2011] Application No 48009/08.)) Mr Mosley has said that he will appeal to the Grand Chamber but informed commentators suggest that he is unlikely to win.

What is the meaning of private life?

Pretty wide. It includes sexual orientation. ((Smith and Grady v UK (1981) 3 EHRR 475.)) The European Court has recently produced a factsheet on its decisions in relation to homosexuality which summarises many of its key decisions (2 May 2011). (( These factsheets can be quite helpful as an update on the law of a particular topic. Below is quotation from a February factsheet summarising the position on expulsions and extraditions, another issue where Article 8 is very relevant:

In a large number of judgments the Court has found a violation of Article 8 in cases involving the expulsion of aliens: Boultif v. Switzerland 02/08/2001; Benhebba v. France 10/07/2003; Maslov v. Austria 23/06/2008 (Grand Chamber); Kaushal and Others v. Bulgaria of 02/09/2010, Gelerie v. Romania 15/02/2011.

Example of pending case: Eric Efeosaosere Okuonghae v. the UK: the applicant is an American national who arrived in the United Kingdom when he was 5 years old. He was deport[ed] to the United States for the offence of the possession of a false passport. He complains in particular that his deportation after having spent 24 years, and almost all of his childhood in the United Kingdom, was a disproportionate inference with his right to respect for his private and family life.

A further factsheet (March 2011) covers recent cases in relation to transsexuals’ rights. The court has explicitly swayed to changes in opinion on the subject of transsexuals. In Goodwin v UK (11 July 2007), it accepted the need for legal recognition of transsexuals changed sexual identity. The UK subsequently introduced the right to apply for a gender recognition certificate.

So, Article 8 cases have covered issues relating to privacy from the media, sexual orientation and identity, expulsion/extradition from the country. What else?

A very wide range of issues. A distinct group of cases have related to prisoners. For example, a prisoner’s correspondence with lawyers ((Gerrard v UK, application no. 2145/93.)) and doctors ((Szuluk v United Kingdom [2009] ECHR 36936/05.)) is protected under Article 8. The court has taken the view that the confidentiality of correspondence with lawyers is to be breached only on a very strict set of exceptions. ((Petrov v Bulgaria (No 15197/02 (22 August 2008).))

Privacy is also crucial in debates about various aspects of new technology. For example, the European Court objected to the retention of the DNA of innocent people on the national DNA database, ((S and Marper v UK: applications nos. 30562/04 and 30566/04.))

the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.

What is JUSTICE’s view on the right to privacy?

It is a crucial issue which will only get more important as time goes on and is noted as such in our five year strategic plan. This has one aspect in relation to the individual and media, another in relation to the individual and the state. We plan to publish a major contribution to the debate about the latter later this year.