The Right of ‘Private Life’ Under the View of the ECHR

Title: ‘Private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.

While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life.

These obligations by involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of apreciation (Botta v. Italy, European Court of Human Rights). Appraise the case law on Article 8 ECHR under the HRA 1998 for compliance with these standards’.

I. Introduction

The protection of the human rights has been a priority for the European Community since its creation. For this reason the provisions that are related with the so-called ‘freedoms’ of the person are characterised as fundamental ones. However, there are times that personal ‘rights’ are violated and the efforts for their restoration – through the procedures that have been developed for this purpose – end to failure. One of the most important rights of this category is that of private life the protection of which has been delegated to the authorised European and national Courts by the application of the provisions included in the article 8 ECHR. In UK, the Courts use the above article combined with the provisions included in the British legislation and mainly the Human Rights Act of 1998, to protect the private life as a basic personal right examining in each case the fulfilment of the requirements that are contained in the relevant legislation.

II.The right of ‘private life’ under the view of the European Convention of Human Rights – article 8 – and the Human Rights Act of 1998 – definition and content

Article 8 of ECHR does not include a clear definition of ‘private life’^[1]. It just describes the possible parameters of the right avoiding to include a detailed description of it. More specifically he refers – as an example – to the ‘family life, home^[2] and corespondance’. Of course there could be the opinion that the ‘private life’ as mentioned in the above article has a particular explanation – which is not included – ane that the elements which follow it, i.e. ‘family life’, ‘home’ and ‘correspondence’, have their own meaning and are separate rights that can enforce their respect. However, from the next paragraph (2) we can assume that the aspects of a person’s life as described in paragraph (1) constitute a ‘single’ right that could be summarized in the phrase ‘private life’. More specifically, the law refers to ‘…the exercise of this right…’ defining in this way that the right protected by this provision is one, that of the private life.

As for the application of this right in the UK, the existing Human Rights Act of 1998 (which has as a main task the activation and the protection of the rights included in the ECHR) secures the recognition of the above right and creates the environment that will promote its application in the everyday’s activities. The HRA contains specific provisions for the interpretation of all the Convention rights (including the right of ‘private life’) as well as for the participation and the power of the authorities to supervise and to enforce its application. The above Act does not modify the existing rights (as included in the ECHR) but it simply specifies the role and the extension of power of the authorities regarding the application and the protection of these provisions.

III. Problems arising during the application of the existing legislation (8 ECHR) by the Courts with the use of HRA 1998 – compliance with standards

Altough the provision related with the respect of the private life is well known and has been applied for a long time, the area and the circumstances of its application are still in question and there are times that the violation^[3] of the right is not clearly recognized^[4] – or even is disregarded – because of the simultaneous existence of a relevant public right which has the priority of application under all the circumstances. The structure of the provision of article 8 of ECHR can create by itself a lot of problems regarding the respect of the right. Although in the 1^st paragraph the prohibition of the violation of the right is clearly stated, the 2^nd paragraph specifies a number of aims the pursuit of which can justify interference with article 8 rights, as par example the ‘economic well-being of the country’ or ‘the protection of the rights and freedoms of others’. Towards that direction it was decided by the court (Wood v United Kingdom) that the covert surveillance measures which the police had applied in the case of Clayton Wood, constituted an interference which was not in accordance with the law and that there was no effective remedy (Privacy and Data Protection, 2004). A. Rowley (2005) examines a very important issue regarding the respect of ‘private life’ as it is stated in the ECHR, this of the anti-social behaviour orders. The problem in the specific occasion is the publicity that follows the orders and which is justified by the UK law (see also Guidance on Publishing Anti Social Behaviour Orders, 1/3/2005). The publicity of ASBOs is considered by A. Rowley as a very ‘sensitive’ matter (regarding the risk of violation of article 8 ECHR) and as a measure it is suggested that such a decicion should be first examined for its necessity, its structure and its benefits both for the public and the perpetrator. We should notice that here that the ‘sacrifice’ of the personal right in favour of the public one that is taken place in such an occasion, cannot be accepted as totally justified. Of course there are cases where this ‘violation’ could be considered as absolutely necessary (when the ‘dangerous’ and ‘violent’ behaviour of a person is totally proved) but even then the evidence used for such an assumption has to be examined thoroughly for its validity and the measures taken have to be in accordance with the desired target.

Another issue that is very connected with the respect of the private life is that of the application of extradition as it can be considered in relation with the general rights of the natives of a state under the national and international rules. For the specific legislative piece, the European Convention, extradition can be regarded as opposite to its provisions especially the one of article 8. On the other hand article 8 – in a case of this nature – places an obligation upon the state’s authorities that if they aren’t willing to prosecute, then the burden is on them to justify their decision (see also The Lawyer, 2004, 19)

A very common violation of the right to ‘private life’ occurs regarding the gathering, keeping and distribution of personal data. These data can refer to many aspects of the personal life, from leizure time to medical treatments. The way that most of the enterprises are structured and operate can justify the collection of different types of data at a first stage^[5]. However, when the reason of their existence has vanished, they should be destroyed mostly for safety reasons. This is a rare phenomenon and in most cases the data that have obtained from one person (sometimes even without his knowledge) are kept^[6] and may be used anytime in accordance with the intentions of the holder^[7].

The right for ‘private life’ is used extensively relating the disputes between the State and the foreigners. The use of article 8 of ECHR is usually combined here with the article 14 of ECHR (prohibition of discrimination). The use of the provisions of the ECHR is seen as a ‘vehicle’ for a positive result in cases that there are no alternatives legal arguments that could be used successfully (see also Chichester District Council v First Secretary of State and others, 2004 and R – on the application of Mehmeti – v the Secretary of State for the Home Department).

IV. Conclusion

From the above mentioned we could come to the conclusion that the right of ‘private life’ is not limited to a particular aspect of person’s life^[8]. It may be found associated with a variety of human activities^[9] depending on the social position and the culture of the specific person. However, this does not mean that its usage is permitted under all the circumstances of the daily activities. Moreover, even in the conditions that its application would appear as necessary its violation is sometimes unavoidable. In these cases, the decision for the existence or not of breach of the right belongs to the Courts (the European and the National Ones), which have to apply the relevant legislation after the careful examination of the evidence and only in cases, that the violation of the right can be strongly assumed. However, we should notice that the above decision if often difficult to be taken mainly because of the extremely fine borders that separate the personal rights from the public ones.

References

A. Journals

Bailey – Harris, R., (2004), ‘Case Report: Human Rights’, Family Law, 34 (639)

Davey, R., (2005), ‘Practice Points: Injecting Some Caution Into Drug Testing’, Law Society Gazette, 102.2 (33)

Fletcher, G. P., (2005), ‘Articles – Parochial Versus Universal Criminal Law’, Journal of International Criminal Justice, 3.1 (20)

International Journal of Evidence and Proof, ‘Noticeboard – Retention of DNA Samples After Acquittal – United Kingdom (England)’, Jan2005, 9 (55)

Johnston, C., Kaye, J., (2004), ‘Does the UK Biobank have a legal obligation to feedback individual findings to participants?’, Medical Law Review, 2004.12 (239)

Law Society Gazette, ‘Legal Update: Law Reports’, Oct2004, 101.40 (28)

Layard, A., (2004), ‘Human Rights in the balance – Hatton and Marcic’, Environmental Law Review, 6.3 (196)

Medical Law Review, ‘United Kingdom – The right to Require Life – Prolonging Treatment’, Sep2004, 12 (306)

Mitchell, E., (2005), ‘Tackling anti-social behaviour’, New Law Journal, 155.7164 (250)

Rowley, A., (2005), ‘Named and Shamed’, New Law Journal, 155.7170 (481)

O’Ferrall, G. M., (2005), ‘Ancillary Relief, Equitable Interests and Criminal Confiscation Orders’, Family Law, 35 (227)

Prest, C., (2005), ‘The right to respect for family life: obligations of the State in private law children cases’, Family Law, 35 (124)

Privacy and Data Protection, ‘Police Bugging – Unlawful’, Dec2004, 5.2 (1)

The Lawyer, ‘Analysis: Home or away’, October 11, 2004, p. 19

Wenderoth, A., (2004), ‘Private lives in the public eye – recent developments in the law of Privacy’, Privacy and Data Protection, 4.8 (10)

Wicks, E., (2004), ‘Late Termination of Pregnancy for foetal abnormality: medical and legal perspectives’, Medical Law Review, 2004.12 (285)

B. Cases

Andrews v Reading Borough Council, 7/2/2005, Queen’s Bench Division

Chichester District Council v First Secretary of State and others, 29 September 2004, Court of Appeal (Civil Division)

Commission of the European Communities v Kingdom of Belgium, 19 September 202, Court of Justice of the European Communities

Dow Chemical Iberica, SA and others v Commission of the European Communities, joined cases 97/87, 98/87 and 99/87, Court of Justice of the European Communities

E v Director of Public Prosecutions, 1 February 2005, Divisional Court (UK)

HM Customs and Excise Commisioners and Long v A, Civ2003

Huang and others v Secretary of State for the Home Department, 1 March 2005, Court of Appeal (Civil Division)

Jones v Hipgrave and another, 15 December 2004, Queen’s Bench Division

Marcic v Thames Water, 2003, Court of Appeal

Mthokozisi v Secretary of State for the Home Department, 20 December 2004, Queen’s Bench Division (Administrative Court)

Price and others v Leeds City Council, 16 March 2005, Court of Appeal (Civil Division)

R (on the application of Lekstaka) v Immigration Appeal Tribunal, 18 April 2005, Administrative Court

R (on the application of O’Reilly) v Blenheim Healthcare Ltd, 10 February 2005, Administrative Court

R (on the application of Mehmeti) v The Secretary of State for the Home Department, 3 December 2004, Queen’s Bench Division (Administrative Court)

R (on the application of Taylor) v Governor of HMP Risley, 29 October 2004, Administrative Court

X v Commission of the European Communities, 5 October 1994, Court of Justice of the European Communities

Footnotes

^[1] A. Wenderoth (2004) examines the aspect of violation of privacy and states that although in UK there is no specific right to privacy, increased media attention is leading an increasing number of celebrities to assert their right to privacy. The use of the laws in this case has not yet proved a very flexible solution, and as a result there is a growing pressure to the UK courts and the Parliament to create an autonomous right of privacy.

^[2] The word ‘home’ as being used to the article 8 of the ECHR is been explained as having the following meaning (Mitchell, E., 2005, 2): ‘a home will usually be the place, the physically defined area, where private and family life develops’. As for the violation of this right this is not limited to concrete or physical breaches, such as unauthorised entry into a person’s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference’.

^[3] There are times when the violation of the right included in article 8 is obvious. However, there is the chance that no claim for damages can be accepted (regarding this violation) because there are other factors which caused this violation and the existence of which were – at least at that time – unavoidable. A Layard (2004) uses as an example the case of Marcic v Thames Water where although the court decided that the flooding of Mr Martin’s property fell within the first paragraph of article 8, his claim for damages under the HRA 1998 could not be accepted because it dit not take ‘sufficient account of the statutory scheme under which Thames Water is operating the offending sewers’. (A. Layard, 2004, 3)

^[4] O’Ferrall (2005) examined the issue of conflicting rights on a property and more specifically the rights of the prosecutor, the husband and the wife. She used as an example the case of HM Customs and Excise Commissioners and Long v A, to study the consequences on the ancillary relief and cohabitee claims when a spouse or partner is the subject of a criminal confiscation order in respect of his assets. The court had to take into account the conflicting interests. It finally decided to give weight to the wife’s right to retain her matrimonial home as it accepted that she was innocent of wrongdoing that the assets were not tainted by her husband’s criminal activities and that the order to be made in the ancillary relief proceedings was the one which would have been appropriate if no confiscation order had been made (O’Ferrall, G. M., 2005, 2)

^[5] In case of R (on the application of O’Reilly) v Blenheim Healthcare Ltd, the claimant argued that there was a violation of his rights according to the article 8 of ECHR because of the effort of the authorities to collect information for his past personal history. The court decided that there was any real risk of confidential information being disclosed. Moreover, even the contact between the responsible medical officer and his parents (for the reason of collecting the above mentioned data) could not infringe the art 8 rights of the claimant.

^[6] See also Johnston, C., Kaye, J., (2004), ‘Does the UK Biobank have a legal obligation to feedback individual findings to participants?’, Medical Law Review, 2004.12 (239)

^[7] International Journal of Evidence and Proof examines the case of the retaining of data by the Police and especially of data contained DNA samples. It refers to the Police and Criminal Evidence Act 1984, which was amended in order to permit police to retain indefinitely DNA samples and fingerprints collected during a criminal investigation in which the suspect was acquitted or the prosecution discontinued (International Journal of Evidence and Proof, 2005)

^[8] Medical Law Review, ‘United Kingdom – The right to Require Life – Prolonging Treatment’, Sep2004, 12 (306)

^[9] In the case of Andrews v Reading Borough Council (2005), the court accepted that the introduction of a new road scheme by the defendant constituted a violation of the claimant’s right to private life as the noise that was produced by the above activities os the defendant was so much annoying that the claimant had to install secondary glazing in his house.