Article 8: Right to Respect for

Private and Family Life, Home

and Correspondence

Lecturer: Eoin Delap BL

Announcements
• Thank you for your flexibility
▫ Return to normal schedule next week
• Assignment is now posted on Moodle
▫ Deadline is 23:59 on 12 November 2023
Research Tools
• Access the
ECHR case law guides
▫ Excellent and free online
resource
▫ They give you the basics – but
not really critical assessment
▫ Make sure you go beyond
these Guides
Article 8 ECHR
Right to respect for private and family life
“1. Everyone has the right to respect for his private and family life,
his home and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic wellbeing of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
Article 8 ECHR
• “[L]east defined and most unruly of the rights enshrined in the
Convention” per Burton J in Wright v. Secretary of State for Health
[2006] EWHC (admin) §66
• Places an obligation on state to respect the individual’s rights
• Four concepts covered
▫ Private Life
▫ Family Life
▫ Home
▫ Correspondence
• None are defined in the Convention
Scope of Rights
• Court has taken an expansive view of these concepts
• These concepts have broadened over time
▫ E.g. gender identity, childcare proceedings, search and seizure
powers, data protection, and environmental issues
• Living instrument doctrine has allowed the court to expand these
rights in line with social norms
• Contains a negative obligation
▫ State must refrain from arbitrary interference
• Also procedural safeguards
▫ State must ensure adequate protection in domestic decision making
Scope of Rights
• Court first considers if complaint falls within scope of Art. 8
• Draws a distinction between a positive and negative right
▫ Negative – state must refrain from doing something
▫ Positive – State must do something to vindicate one’s right
• Margin of appreciation plays an important role in Art. 8,
particularly with regard to positive obligations
Private Life
• Broad concept that makes it difficult to apply
• Court has consistently taken a broad view of private life
▫ Not just a right to be free from interference, but also a right to have
space to fulfil one’s personal potential
• “Respect for private life must also comprise to a certain degree the right
to establish and develop relationships with other human beings.”
▫ Niemetz v. Germany 16 EHRR 97, 29
• Case concerned search of lawyer’s office and Article 8 applied despite
professional context
Private Life
• X v. Germany – preservation of a police file came with data protection
and Art. 8
• Undisputed now that Article 8 applies to data protection
• Physical and bodily integrity now covered by Art. 8
▫ X and Y v. Netherlands 8 EHRR 235
Family Life
• Family life now much broader than 1950s definition
• Good example of the Court’s evolutive method, i.e. taking account of
changing social circumstances
• Formal relationships fall within Article 8 generally, e.g. marriage
• Non-marital relationships may also, with factors such as
▫ Cohbaitation, length of relationship, demonstrable commitment such as
children, etc.
• Being engaged without more unlikely to be enough
Family Life
• Previously, same sex couples were considered “private life”, but not
“family life”
• Rapid development in this area has brough same sex couples under
“family life”
• Children enjoy family life in relation to parents where they are in a
relationship
• Where parents are non-cohabiting, mother enjoys family life, but father
may not in all circumstances
Correspondence
• Correspondence interpreted broadly: phone, email, etc.
• Newly developed forms of communication likely to fall under
“correspondence”
• Papers and files generally also included
▫ Very significant protection in the business context