Family life article 8
The European Court of Human Rights has developed and expanded on the meaning of the protection of family, life the home and correspondence in various contexts. In Niemietz v Germany the court indicated that it was “neither possible nor necessary to attempt an exhaustive definition of the notion of family life. However, it would be too restrictive to limit the notion to an inner circle in which the individual may live his personal life as he chooses and to exclude therefrom the outside world not encompassed within that circle. Respect for family life must also comprise to a certain degree the right to establish and develop relationships with other human beings. It does not in principle exclude professional or business activities. The working life gives an opportunity of developing relationships with the outside world which may be part and parcel of a person’s life.”
In Peck v UK the court said
“Private life is a broad term not susceptible to exhaustive definition.… [but] it includes elements such as gender identification, name, sexual orientation and sexual life and important elements of the personal sphere protected by article 8. It protects the right to identity and personal development and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is therefore a zone of interaction of a person with others even in a public context which may fall within the scope of private life.”
In Stubbings v UK the court indicated that the concept of private life includes the physical and moral integrity of the person. It includes the concepts of identity and personal development.
In Odievre v France, it was said that “ personal development includes details of a person\’s identity as a human being and the vital interests protected by the Convention on obtaining information necessary to discover the truth concerning important aspects of one\’s personal identity such as the identity of one’s parent, birth and in particular the circumstances in which a child is born forms part of a child’s the trials and subsequently the adult’s private life guaranteed by article 8 of the Convention.
Covert surveillance is subject to Article 8. The persons whose communications are intercepted and others whose conversations are recorded are prospectively affected.
In Klass v Germany 1978, it was confirmed that telephone conversations are within the scope of private life and correspondence. Later cases reflect the advancing technology. Interception of communications must be justified by law. Surveillance is permissible in principle for legitimate objectives where necessary. There must be safeguards and procedures to prevent abuse. The court must be satisfied that whatever system of surveillance is adopted, there exist adequate and effective guarantees against the abuse.
This assessment depends on all the circumstances of the case such as
- the nature scope and duration of the possible measures,
- the grounds required for ordering such measures,
- the authorities competent to permit carry out and supervise such measures and
- the kind of remedy provided by national law.
There should be procedures and guidelines as to the circumstances in which surveillance is justified and the procedures to authorise it. National authorities have some discretion but there must be minimum safeguards against possible abuse. There must be safeguards which counter the risk of disproportionate interference with privacy.
The law should identify the circumstances in which interception is permitted. It should specify the categories of persons whose communication may be intercepted. It should provide for the requisite procedures.
In Kruslin v France, the French procedures were found to be inadequate and there was a violation of Article 8. There were insufficient safeguards to prevent abuse. There was too much discretion without its scope being sufficiently defined.
In Malone v UK (1984) police in England obtained records from the Post Office with details of telephone numbers called for the purpose of investigation of the suspected handling of stolen goods. There was no detailed statutory code dealing with the matter and the UK was found to be in breach of its obligations.
It cannot be said with any reasonable certainty what elements of the powers to intercept are incorporated and legal rules and what elements remain within the discretion of the executive. In view of the attendant obscurity and uncertainty as to the state of the law in this essential respect… the law …. does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to its citizens entitled under the rule of law in a democratic society is lacking.
In Halford v UK 1997 which followed UK legislation on the interception of public telephone communications, telephone calls in the context of business or work were held to be within the scope of protected privacy and correspondence. There was no regulation of interception of calls outside of a public network. Therefore, internal communications which were intercepted had no legal basis.
In Liberty v UK legislation, which allowed the very broad interception of communications in accordance with an unpublished code of practice was found to breach Article 8. There were insufficient limits and parameters on the type of information collected and retained.
Copland v UK involved a college authority’s monitoring telephone email and Internet use which was claimed to be an excess of use for personal purposes. The college rules provided broad powers to do anything necessary or expedient for its purposes including monitoring. However, the provisions were found to be unlawful and to breach Article 8.
In Kennedy v UK very broad UK provisions for interception of communications in the context of national security and terrorism were upheld. The procedure had the requisite clarity, authorisation for processing communication and destruction of the material concerned.
Uzun v Germany, the systematic collection and retention of locational /GPS information on an individual gathered on surveillance breached the protection for private life. The impact on private life was greater because it tracked the person\’s movements over a protracted period. In these particular circumstances, the measures were disproportionate and unjustifiable.
Collection of personal data
The collection by public authorities of personal data and its retention potentially raises issues under Article 8. This may be so even in relation to public places when the data is collected systematically and retained in the context of membership of organisations and political participation.
Similarly, Article 8 may be breached by the retention of public information legitimately collected in the first instance, such as police records of genetic materials, fingerprints, photographs, forensic material et cetera.
In Leander v Sweden a navy employee was found unsuitable for employment in a particular role on the basis of information systematically gathered on individuals in this role … The European Court found the Swedish authority’s systems to be sufficiently clear and precise and to have the necessary safeguard. They involved national security, and they were necessary in a democratic society.
In Turek v Slovakia in similar circumstances, the security clearance legislation was found to be inadequate, and the Article 8 protection was breached. It was accepted that the retention gathering, and retention of such information was legitimate. In the circumstances, the information retained was decades out of date and of no conceivable relevance and there was a breach.
Gardel v France concerned material on sex offender’s register. The court emphasised that the data must be relevant for the purposes concerned not accessible and cats for no longer than legitimately required to stop the must be protections against misuse of the data stop.
S and Marper v UK concerned the indefinite retention of DNA samples and fingerprints of a person who had been acquitted. The court held that the retention of DNA which impacted private life was justifiable for the prevention of crime. However, out of line with other EU states the system allowed for indefinite retention of records for anybody suspected of the relevant category of crime.
In several cases, where information has been gathered by a public authority but released to the press without any safeguards of justification there was a breach. Although the gathering of information might be justified under the circumstances the disclosure in public was unnecessary and violated the protection.
In LL v France, the use of personal medical records in a divorce purporting to show a tendency to domestic violence was found to be disproportionate and to be a breach of Article 8. Medical and health data protection is of fundamental importance and cogent requirements were required to outweigh the confidentiality rights.
IN KU v Finland the absence of state mechanisms to compel disclosure of the identity of persons who defamed anonymously on the internet was held to breach Article 8 notwithstanding that it concerned the disclosure of identity confidential information. A person had posted a photograph of the applicant in an advertisement on the internet pretending to be an underage minor soliciting an intimate relationship.
In Golder v UK a prisoner\’s correspondence containing complaints was intercepted because the complaints had not been raised internally. The European court held there was an interference with his correspondence and communications with lawyers which could not be justified. Actions were permissible but they must be proportional for a legitimate aim.
In Mehmet Nuri Ozen v Turkey letters were retained because the authorities were prepared to pay for a translator into practice. This was held not to be justified.
In Yefimenko v Russia the routine interception of correspondence was found not to be justifiable because there were no measures for protection against arbitrary action.