Family and Private Life
The Article protects a number of specific aspects of privacy, namely family life, home and correspondence and private life. It restricts arbitrary interference of those rights, for example, by surveillance and the interception of communications.
Privacy is notoriously difficult to define and has many different facets. States are given a margin of appreciation in relation to the right.
A person’s personal life is regarded as an intimate area protected by the Convention. Any interference must have strong and cogent justification on health, or moral or other grounds. Where there is no reasonable relationship between the inconvenience or burden placed on the state and the interference with the right, there may be a breach of the protection.
Accordingly, where the court reversed its stance in relation to the re-registration of births in the case of transgender individuals, having formerly regarded a refusal as justifiable in terms of administrative convenience.
The right to privacy may be limited and interfered with where there are legitimate reasons. The interference must be based on one of the excepted grounds.
The state might interfere directly or fail to take measures to guarantee the right to private life. In order to comply with the Convention, the interference must be in accordance with the law and necessary in a democratic society.
It must be justified on one of the state grounds, i.e. national security, public safety, economic well-being, prevention of crime, protection of health or morals, and protection of rights of freedom of others.
In broad terms, the private sexual life of consenting adults of full capacity is not the concern of the state. However, the court has held that there are limits.
In a challenge to laws prohibiting the infliction of bodily harm, in the case of fully private and consensual sadomasochistic behaviour, it was held that there was no breach of the Convention’s right to privacy. It was held that because serious bodily harm was entailed, the state had a right to legislate to protect against harm, even where the person affected might consent.
In another case, challenging laws which limited the number of men who could legitimately have homosexual sex as a group, it was held that the law breached the prohibition in the case of men of full age in a close group.
The protection is in respect of private life and not privacy in itself. Privacy is protected by the Article only in so far as it impacts upon private life.
The right to one’s private space and life allows the right to develop relationships with others. The protection covers the person’s dignity in most private and personal aspects and moments of life.
Limits to Privacy
The right to privacy comes into conflict with the right to freedom of expression. Freedom of speech is protected insofar as it contributes to democratic debate. However, public figures have a right to private life, where they have a legitimate expectation of privacy.
The Article restricts and limits states’ rights to conduct surveillance of the kind generally undertaken by the police and other authorities. It is legitimate to collect information for the purpose of prevention and detection of crime.
Similarly, methods of questioning, searching, fingerprinting and photography are permitted, subject to the conditions. It may be permissible to make and retain records beyond where strictly necessary. The issue arises in the context of the retention and gathering of information by the police authority.