The right to respect for private and family life, home and correspondence
Article 8 protects the private life of individuals against arbitrary interference by public authorities and private organisations such as the media. It covers four distinct areas: private life, family life, home and correspondence. Article 8 is a qualified right, so in certain circumstances public authorities can interfere with the private and family life of an individual.
These circumstances are set out in Article 8(2). Such interference must be proportionate, in accordance with law and necessary to protect national security, public safety or the economic wellbeing of the country; to prevent disorder or crime, protect health or morals, or to protect the rights and freedoms of others.
The concept of private life in UK law is based on the classic civil liberties notion that the state should not intrude into the private sphere without strict justification. In our modern system aspects of this right are protected by several regulators and pieces of legislation, including the Data Protection Act and the Regulation of Investigatory Powers Act.
The current legal and regulatory system is not providing adequate protection for personal information
We discuss issues of privacy and media freedom under Article 10, freedom of expression. This chapter focuses on information privacy, which concerns the collection, use, tracking, retention and disclosure of personal information. There is evidence that technological developments and a weak legal and regulatory system leave members of the public at risk of Article 8 breaches in this area.
The review shows that
- Britain's legislation relating to information privacy and surveillance is patchy, and in some areas there is no protection against infringements.
- The regulators and monitors charged with protecting information privacy are not equipped to deal with the sheer amount of information being processed and shared.
- Public sector organisations continue to make serious errors which put information privacy at risk.
- Retaining the DNA of innocent people on a national database may breach their Article 8 and Article 14 rights.
Not enough is done to protect the dignity and autonomy of people who use health and social care services
Article 8 protects dignity and autonomy. Though these concepts are not mentioned in the article itself, they have developed through case law. Article 8 rights are often considered alongside Article 3, which covers mistreatment serious enough to constitute torture or inhuman or degrading treatment. There is evidence of mistreatment of some of those who use health and social care services which may breach Article 8.
The review shows that:
- People who are receiving health and social care from private and voluntary sector providers do not have the same guaranteed level of protection under the Human Rights Act as those receiving it from public providers.
- There is a lack of awareness, both within local authorities and among care staff, of how human rights obligations apply in a health and social care setting.
- Better complaints systems are needed across the health and social care sectors.
- Increased pressure on health and social care budgets puts the Article 8 rights of services users at risk.
Requirements to annul marriage prior to gaining gender recognition continue to cause hardship for some transsexual people.
In the UK, a transsexual person who is married or in a civil partnership is required to have their marriage or partnership annulled before he or she can be given a gender recognition certificate under the Gender Recognition Act (2004). The European Court of Human Rights has ruled that this is not a breach of Article 8, but the requirement continues to cause hardship for those affected.
The review shows that:
- Transsexual people currently have to divorce or end their civil partnership if they want their gender to be legally recognised.
There continues to be a lack of appropriate accommodation for Gypsies and Travellers
Article 8 does not impose an obligation on public authorities to provide homes oblige authorities to respect the home. This applies particularly in situations where local authorities wish to evict people from their homes. Due to a long lack of authorised sites, Gypsies and Travellers often have no choice other than to live in unauthorised sites. This increases the likelihood that they will face eviction.
The review shows that:
- To date, the courts have not found a breach of Article 8 in relation to an eviction from an unauthorised Gypsy and Traveller site. However, there may be grounds for challenging this precedent.
- There continues to be a shortage of authorised Gypsy and Traveller sites, increasing the likelihood of further forced evictions from unauthorised sites for anybody, or to provide sites for Gypsies and Travellers.
Download the full article
Last Updated: 28 Apr 2014