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Article 8: Right to Respect for Private and Family Life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 8 guarantees respect for four things: a person’s private life, family life, home and correspondence.
Private life
Lots of issues have been held to come within the scope of a person’s private life and the ECHR has stressed that it is not possible to limit or define what comes within its scope. Things which do clearly come within the scope of a person’s private life are:
• Bodily integrity – Article 8 will come into play if someone is forced to have medical treatment or if he or she is forcibly restrained.
• Personal autonomy – this means the right to make decisions about how you lead your life. People have tried to argue that the right to smoke cannabis is an issue of personal autonomy and should therefore be protected by Article 8 but the courts have not been prepared to accept this.
• Sexuality – there have been a number of cases in which the ECHR has made it clear that laws which prohibit gay men having sex breach Article 8.
• Personal identity – the ECHR decided in 2002 that British law’s failure to fully recognise the new gender of transgendered people breached Article 8.
• Personal information – the holding, use or disclosure of personal information about someone is covered by Article 8. The article may also give someone the right to access personal information held about them.
• Surveillance
Family life
This means your relationship with your close family. This includes a man and woman who are not married but who live in a stable relationship. The ECHR has not yet recognised same-sex couples as families, but this may well change and, even if it does not, it may be that the courts in this country will do so.
Home
Your home is where you currently live. The right to respect for your home does not mean that you have the right to be given a home if you do not have one, or to be given a better one than you already have.
Environmental issues (noise or other pollution) may come within the scope of Article 8, because they affect both a person’s private life and home.
Correspondence
This includes your phone calls and letters, as well as e-mails. People have successfully used Article 8 to challenge the police or secret services bugging their phones.
A qualified right
Article 8 is qualified right. This means that an interference with the right can be justified. Where the interference is justified, there will be no breach of the article. The circumstances where an interference with the right can be justified are set out in the second part of the article (Article 8(2)).
For an interference to be justified it must:
• Be ‘in accordance with the law’ - this means that there has to be clear legal basis for the interference and that the law should be readily accessible.
• Pursue a legitimate aim - there are six legitimate aims set out in Article 8(2), e.g. ‘the prevention of disorder or crime’. A public authority which intends to interfere with a person’s rights under Article 8 must be able to show that what they are doing pursues one of these six legitimate aims. This is rarely a problem, as the legitimate aims are so wide.
• Be ‘necessary in a democratic society’ - This is usually the crucial issue. There must be a good reason for the interference with the right and the interference must be proportionate. This means that it should be no more than is necessary.
Positive obligations
Article 8 and the other qualified articles are largely concerned with preventing the Government, the police or other state bodies interfering with people’s rights. They are negative obligations in that they impose a duty not to do something. However, there may be circumstances where the Government is under a positive obligation, a duty to do something in order to protect or promote people’s rights. It will always be much harder to argue that the Government is under a positive obligation than under a negative one.
