H418/03 - Article 8: private and family life

Protected interests

Article 8 protects a person's private life, family life, home and correspondence through a right to respect for those interests.

Private life includes bodily and psychological integrity, personal identity, relationships and private information. A medical record can engage it even if the patient is famous. Privacy is wider than secrecy: repeated publicity can be intrusive although some people already know the information. Nor does a public location automatically make everything a person does there unprotected.

Family life concerns genuine family relationships, including parent–child relationships and stable partnerships. Marriage is not the only basis; an unmarried or same-sex couple can have family life. The existence and closeness of the relationship are factual questions. Merely hoping to start a family is not the same as an existing family relationship.

A home is a place with sufficient, continuing links to the person as their residence. Ownership is not essential: a rented home can qualify. Article 8 does not itself promise that the state will give everyone a house. Correspondence includes private letters, telephone conversations and electronic communications. Opening a private letter or intercepting a call can interfere with it even without later publication.

The state has a negative obligation to avoid unjustified interference and may have positive obligations to secure effective respect, including protection against serious private intrusion. These are duties of respect and fair protection, not guarantees that every personal preference will be satisfied. Under Human Rights Act 1998 (HRA) section 6, public authorities normally must act compatibly with Convention rights. A private newspaper is not automatically a public authority; a privacy claim against it usually uses a domestic cause of action shaped by Convention values.

Justified interference

An interference with a protected interest is not automatically a violation because Article 8 is a qualified right.

Article 8(2) requires three cumulative conditions. First, interference must be in accordance with the law: there must be a legal basis of adequate quality, with accessible rules, foreseeable limits and safeguards against arbitrary power. Secondly, it must pursue a listed legitimate aim: national security, public safety, the country's economic well-being, prevention of disorder or crime, protection of health or morals, or protection of others' rights and freedoms. Administrative convenience by itself is not an extra listed aim. Thirdly, it must be necessary in a democratic society, including a proportionate response to a pressing need.

Proportionality asks whether the aim warrants interference, whether the measure helps achieve it, whether a less intrusive effective measure could be used, and whether the benefit justifies the burden on the individual. A good aim cannot cure a measure that is needlessly broad. State discretion is not unlimited: the European Court of Human Rights' margin of appreciation allows some national judgment, varying with the issue, while retaining European supervision.

Consider an original example. Investigators have credible evidence that a named suspect coordinates burglaries. A carefully limited surveillance operation may pursue crime prevention. Recording every conversation of every resident of the street for a year intrudes on many uninvolved people. The authority must explain why the wider measure is needed and what safeguards exist; it cannot simply repeat “crime prevention”. If targeted observation can achieve the same purpose, the wider measure becomes harder to justify.

Analyse engagement and justification separately. A search of a home engages Article 8 even if a warrant and strong evidence ultimately make it lawful and proportionate. Conversely, identifying a family relationship does not establish an absolute immunity from removal, criminal investigation or other public measures.

Private information and publication

The domestic tort of misuse of private information helps protect privacy while allowing justified reporting.

The court first asks whether the claimant had a reasonable expectation of privacy in the information, considering its nature and the circumstances. It then weighs the competing Article 8 and Article 10 interests. Neither right has automatic priority. The contribution to public debate, harm and intrusion, the person's conduct, and the extent of the proposed publication matter. Public interest means a reason for disclosure serving the public, not merely something readers are curious about.

In Campbell v MGN Ltd (2004), Naomi Campbell had publicly denied drug use. The newspaper could correct that false impression. By a majority, however, the House of Lords protected the additional treatment details and photographs associated with her attendance at Narcotics Anonymous. The additional disclosure could disrupt treatment and went beyond what correction required. The significance is selective balancing: justified disclosure of one fact did not surrender all related privacy. The dissenting judges gave more weight to journalistic detail, showing why the amount of necessary disclosure can be disputed.

In PJS v News Group Newspapers Ltd (2016), the Supreme Court maintained an interim injunction despite material being available abroad and online. Further mass-media publication could still produce additional intrusion and distress, including to children. This was temporary protection pending trial, not a rule that all celebrity stories must be banned. The dissent considered effective secrecy already lost. Distinguish loss of confidentiality from the additional harm of intrusion.