ECHR Article 8 — Right to Private and Family Life Explained

Article 8 ECHR protects the right to respect for private and family life, home and correspondence. It is given effect in UK law by the Human Rights Act 1998. Public authorities must act compatibly with Article 8 (s 6 HRA), and courts must read legislation compatibly so far as possible (s 3 HRA).

Scope. Article 8 protects an expansive set of interests:

• Private life: personal autonomy, sexual identity (Goodwin v UK (2002) 35 EHRR 18), personal data (S and Marper v UK (2009) 48 EHRR 50), reputation (Pfeifer v Austria (2007)).
• Family life: recognised relationships beyond the nuclear family — Marckx v Belgium (1979) 2 EHRR 330; R (Quila) v SSHD [2011] UKSC 45 on marriage immigration controls.
• Home: the physical place a person lives, including a long-term occupied property without legal title (Connors v UK (2005)).
• Correspondence: letters, phone calls, emails, and now text messages and DMs (Copland v UK (2007)).

Article 8(2): qualified, not absolute. Interference with Article 8 is permissible if it is (a) in accordance with the law, (b) in pursuit of a legitimate aim, and (c) necessary in a democratic society (i.e. proportionate to the aim and meets a pressing social need).

The structured proportionality analysis. UK courts apply a four-stage test (Bank Mellat v HM Treasury (No 2) [2013] UKSC 39): (i) is the objective sufficiently important? (ii) is the measure rationally connected? (iii) could a less intrusive measure have been used? (iv) does the measure strike a fair balance between rights and the community interest?

Leading UK Article 8 cases.

• Campbell v MGN [2004] UKHL 22— misuse of private information; Naomi Campbell’s Article 8 rights against Daily Mirror.
• HRH the Duchess of Sussex v Associated Newspapers [2021] EWCA Civ 1810 — private letter; summary judgment for Article 8.
• Re S (A Child) [2004] UKHL 47— balancing Article 8 against Article 10 in reporting children’s identities.
• R (Catt) v Association of Chief Police Officers [2015] UKSC 9 — police retention of data on protest attendance was a proportionate interference.
• R (Christian Institute) v Lord Advocate [2016] UKSC 51 — Scottish “named person” scheme breached Article 8.
• R (P) v SSHD [2019] UKSC 3— criminal-records disclosure scheme partly incompatible with Article 8.

Misuse of private information. UK courts have developed a free-standing tort of misuse of private information, structurally derived from Article 8: (1) does the claimant have a reasonable expectation of privacy? (2) does the claimant’s Article 8 right outweigh the publisher’s Article 10 right when proportionately balanced? See Vidal-Hall v Google Inc [2015] EWCA Civ 311; Lloyd v Google [2021] UKSC 50.

Positive obligations. Article 8 imposes positive duties as well as negative ones — the state must sometimes act to protect private life, not just refrain from interference (X & Y v Netherlands (1985) 8 EHRR 235; Z v UK (2002) 34 EHRR 3).

Exam approach. (1) identify which Article 8 interest is engaged (private life, family life, home, correspondence). (2) identify the interference. (3) apply Article 8(2) and the proportionality test. (4) note any positive-obligations argument. Cite the relevant UK case law throughout.