Article 8 - the right to privacy and family life
What does it say?
Article 8
Right to respect for private and family life
1) Everyone has to right to respect for his private 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 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 is a qualified rights and therefore it can be interfered with in the correct circumstance
A very wide scope, rights recognised under this article range from protection of reputation, to the protection of
someone's physical and mental integrity, to protection of relationships or how we are able to interact with
others.
This is what makes this right so interesting.
Negative Obligations
Article 8 protects against arbitrary interferences with private and family life, home and correspondence by a
public authority
Regard must be had to the fair balance that has to be struck between the competing interests of the individual
and of the community as a whole, the aims in the second paragraph of article 8 being of a certain relevance
Where the case concerns a negative obligation, the court must assess whether the interference was consistent
with the requirements of article 8 paragraph 2
Four requirements needed to justify an interference
- In accordance with the law
This expression does not only necessitate compliance with domestic law but also relates to the quality of that
law, requiring it to be compatible with the rule of law
The national law must be clear, foreseeable, and adequately accessible
For example; as the court articulated in the surveillance context, the law must make it clear when authorities
may resort to the use of secret surveillance
Vukota - Bojic v. Switzerland
The court found a violation of article 8 due to the lack of clarity and precision in the domestic legal provisions
that had served as the legal basis of the applicants surveillance by her insurance company after an accident
- Pursuing a legitimate aim
“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”
Open ended - but the burden is on the state to justify it
S.A.S v France
A ban on full face veils in public places served a legitimate aim taking into account the respondent states point
that the face plays an important role in social interaction. It was therefore able to accept that the barrier raised
against others by a veil concealing the face was perceived by the respondent state as breaching the right of
others to live in a space of socialization which make living together easier
However not unlimited
Toma v Romania
The court found that the government had provided no legitimate justification for allowing journalists to publish
images of a person detained before trial, when there was no public safety reason to do so.
, - Necessary in democratic society
The court balances the interests of the member state against the right of the applicant
In an early and leading article 8 case, the court clarified that necessary in this context does not have the
flexibility of such expressions as useful, reasonable or desirable implies the existence of a pressing social
need for the interference in question
- Proportionate
In order to determine the proportionality of a general measure, the court must primarily assess the legislative
choices underlying it
The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance
in this respect, including to the operation of the relevant margin of appreciation
Positive Obligations
Member states also have positive obligations to ensure that article 8 rights are respected even as between
private parties
The court considers whether the importance of the interest at state requires the imposition of the positive
obligation sought by the applicant. Some potential factors considered;
- The importance of the interests at stake and whether fundamental values or essential aspects of
private life are in issue
- The impact on an applicant of a discordance between the social reality and the law
- The coherence of the administration and legal practices within the domestic system
Margin of Appreciation
Particularly relevant and important to this right - the states enjoy a certain margin of appreciation
The margin effects the level of scrutiny
Wide or narrow margin;
A particularly important aspect of an individual's life = narrow margin
Where there is no consensus within the member states of the council of europe, or where the case raises
particular sensitive moral or ethical issues = wide margin
Private Life
General scope
Private life is a broad concept incapable of exhaustive definition and may “embrace multiple aspects of the
person's physical and social identity”
However throughout its case law, the court has provided guidance as to the meaning and the scope of private
life for the purposes of article 8
The generous approach to the definition of personal interests has allowed the case law to develop in line with
social and technological developments
Physical, Psychological or moral integrity
X and Y v The Netherlands
Facts; the case concerned the sexual assault of a mentally disabled 16 year old girl and the absence of
criminal law provisions to provide her with effective and practical protection
Decision; Regarding the protection of the physical and psychological integrity of an individual from other
persons, the court has held that the authorities positive obligations may include a duty to maintain and apply in
practice an adequate legal framework affording protection against acts of violence by private individuals
The court indicated for the first time that the concept of private life covered the physical and moral integrity of
the person.
Domestic Violence
Absolute privacy would prevent the state/ courts from intervening with individuals' family dynamics. This would
be problematic to sufficiently safeguard victims of domestic violence and abuse.
The court holds states responsible for protecting victims, particularly when the risks of violence are known by
state officers and when officers fault to enforce measured designed to protect victims of violence
What does it say?
Article 8
Right to respect for private and family life
1) Everyone has to right to respect for his private 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 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 is a qualified rights and therefore it can be interfered with in the correct circumstance
A very wide scope, rights recognised under this article range from protection of reputation, to the protection of
someone's physical and mental integrity, to protection of relationships or how we are able to interact with
others.
This is what makes this right so interesting.
Negative Obligations
Article 8 protects against arbitrary interferences with private and family life, home and correspondence by a
public authority
Regard must be had to the fair balance that has to be struck between the competing interests of the individual
and of the community as a whole, the aims in the second paragraph of article 8 being of a certain relevance
Where the case concerns a negative obligation, the court must assess whether the interference was consistent
with the requirements of article 8 paragraph 2
Four requirements needed to justify an interference
- In accordance with the law
This expression does not only necessitate compliance with domestic law but also relates to the quality of that
law, requiring it to be compatible with the rule of law
The national law must be clear, foreseeable, and adequately accessible
For example; as the court articulated in the surveillance context, the law must make it clear when authorities
may resort to the use of secret surveillance
Vukota - Bojic v. Switzerland
The court found a violation of article 8 due to the lack of clarity and precision in the domestic legal provisions
that had served as the legal basis of the applicants surveillance by her insurance company after an accident
- Pursuing a legitimate aim
“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”
Open ended - but the burden is on the state to justify it
S.A.S v France
A ban on full face veils in public places served a legitimate aim taking into account the respondent states point
that the face plays an important role in social interaction. It was therefore able to accept that the barrier raised
against others by a veil concealing the face was perceived by the respondent state as breaching the right of
others to live in a space of socialization which make living together easier
However not unlimited
Toma v Romania
The court found that the government had provided no legitimate justification for allowing journalists to publish
images of a person detained before trial, when there was no public safety reason to do so.
, - Necessary in democratic society
The court balances the interests of the member state against the right of the applicant
In an early and leading article 8 case, the court clarified that necessary in this context does not have the
flexibility of such expressions as useful, reasonable or desirable implies the existence of a pressing social
need for the interference in question
- Proportionate
In order to determine the proportionality of a general measure, the court must primarily assess the legislative
choices underlying it
The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance
in this respect, including to the operation of the relevant margin of appreciation
Positive Obligations
Member states also have positive obligations to ensure that article 8 rights are respected even as between
private parties
The court considers whether the importance of the interest at state requires the imposition of the positive
obligation sought by the applicant. Some potential factors considered;
- The importance of the interests at stake and whether fundamental values or essential aspects of
private life are in issue
- The impact on an applicant of a discordance between the social reality and the law
- The coherence of the administration and legal practices within the domestic system
Margin of Appreciation
Particularly relevant and important to this right - the states enjoy a certain margin of appreciation
The margin effects the level of scrutiny
Wide or narrow margin;
A particularly important aspect of an individual's life = narrow margin
Where there is no consensus within the member states of the council of europe, or where the case raises
particular sensitive moral or ethical issues = wide margin
Private Life
General scope
Private life is a broad concept incapable of exhaustive definition and may “embrace multiple aspects of the
person's physical and social identity”
However throughout its case law, the court has provided guidance as to the meaning and the scope of private
life for the purposes of article 8
The generous approach to the definition of personal interests has allowed the case law to develop in line with
social and technological developments
Physical, Psychological or moral integrity
X and Y v The Netherlands
Facts; the case concerned the sexual assault of a mentally disabled 16 year old girl and the absence of
criminal law provisions to provide her with effective and practical protection
Decision; Regarding the protection of the physical and psychological integrity of an individual from other
persons, the court has held that the authorities positive obligations may include a duty to maintain and apply in
practice an adequate legal framework affording protection against acts of violence by private individuals
The court indicated for the first time that the concept of private life covered the physical and moral integrity of
the person.
Domestic Violence
Absolute privacy would prevent the state/ courts from intervening with individuals' family dynamics. This would
be problematic to sufficiently safeguard victims of domestic violence and abuse.
The court holds states responsible for protecting victims, particularly when the risks of violence are known by
state officers and when officers fault to enforce measured designed to protect victims of violence
