The Convention 10: The right to privacy

Almost every day the British press runs a story decrying the European Convention on Human rights and article 8, the right to private and family life, is a favourite target. Here’s a classic example from The Mail online.

The main focus of this article is crime and deportation, a small part of article 8’s emphasis. There are many more aspects of the ECHR that the tabloid press could comment on but, not surprisingly article 8 is the one that is attacked most often – at least so far as I can tell. That’s hardly surprising. After all article 8, the right to privacy, is the biggest thorn in their sides. Let’s look at an example or two…

In 2008 Max Mosley, president of the ‘Fédération Internationale de l’Automobile’, challenged the News of The World in the High Court after they published private videos of his involvement in sexual acts. The case which was based upon Mosley’s article 8 rights cost the newspaper £60,000 in damages.

The News of the World has been involved in a series of court cases, investigations and pay-offs since 2006 when the now infamous telephone tapping scandal first broke. Even now, five years later the case still hasn’t gone away and Scotland Yard launched ‘Operation Weeting’ last January to further investigate the phone tapping allegations.

New Scotland YardBut it’s not only newspapers that fall foul of article 8. In 1978/9 The Metropolitain Police tapped Mr. James Malone’s telephone. He was unaware of this and also the ‘metering’ of his phone which meant a record was kept of every other telephone number he connected to. When this became clear Mr. Malone took his case through the UK courts but the dispute was not resolved and so it was referred to the European Court of Human Rights. The judgement recorded in 1984 went against the police and against UK – not because Mr. Malone should not have been investigated but because there were no adequate safeguards in place to ensure the monitoring was reasonable, proportionate and legal. The result was the Interception of Communications Act 1985.

It is still possible and legal to monitor a person’s communications but since 1985 UK law has demanded that it is only done in keeping with article 8 conditions. To put it another way interference with privacy and family life must be necessary and proportionate (not using a hammer to crack a nut) and intended to:

• protect national security
• protect public safety
• protect the economy
• protect health or morals
• prevent disorder or crime
• protect the rights and freedoms of other people.

A more recent case involving privacy within family life was that of Smith & Grady v UK (1999). These two women were discharged from the British armed forces because of their homosexuality. The European Court did not agree that their private sexuality had anything to do with national security, public safety, the economy, public morals, crime and disorder or the freedoms of others. The court further ruled that any fears and prejudices based upon their presence in the military were both unreasonable and unwarranted. The following years the UK Armed Forces Code of Social conduct was revised to remove such unwarranted prejudice against homosexuality.
Article 8 is a bit bigger than tabloid articles about deportation suggest, isn’t it?

In health and social care article 8 was significant in the Bournewood case (HL vs UK) which led to the Mental Capacity Act 2005 and the Neary case in which the High Court ruled only a few days ago against Hillingdon Council. Family life can include contact with significant others, the right to refuse entry into property, and the right for your confidential communications to stay that way. These rights are serious and cannot be interfered with by anyone without good reason. Funnily enough the European court is unlikely to consider headline gossip about someone’s sex life to be a proportionate way to protect public safety or health, national security, the economy or anything else.

Perhaps that’s why the tabloids focus upon immigration so much – it’s less obvious than attacking the right to privacy directly.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here:

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