Your right to privacy
What are my rights to privacy?
Article 8 - the right to respect for private and family life, home and correspondence
The nature of the article 8 rights
Article 8 offers general protection for a person’s private and family life, home and correspondence from arbitrary interference by the State. This right affects a large number of areas of life ranging from surveillance to sexual identity - it is framed extremely broadly. Respect for private life includes a right to develop one’s own personality, as well as to create relationships with others. For example, Article 8 has been critical in providing basic protection for the rights of homosexual and transsexual people. It has also been used to extend protection to a person’s office space as well as his or her domestic home. More recently, in the English and Welsh courts, it has been recognised that a right of privacy may be enjoyed by a company as well as an individual.
Protection of private life and the home may also be relevant to decisions made in planning and environmental contexts. Permitting the carrying out of an unpleasant development nearby your home, for example a nuclear plant or waste site, which will severely affect your enjoyment of your property may be an interference with your rights under Article 8.
The Convention is often described as a ‘living instrument’. This means that the nature of Convention rights and the extent to which they should be protected will depend upon society’s values at any one time. With regard to Article 8, a very good illustration of this is the rights of transsexual people. Previously, the ECHR had decided that the United Kingdom’s failure to allow someone who had had gender reassignment surgery to obtain a new birth certificate altering their legal sex did not amount to a breach of Article 8 rights. However, they stressed that this would need to be reassessed in the light of any material changes in attitudes towards and scientific knowledge and insight into transsexualism. In July 2002, the ECHR decided that the time had come where such rights had to be recognised and found that the United Kingdom (UK) was in breach of its obligations under the Convention. This has resulted in new legislation from the Government which will allow persons with gender dysphoria to apply for a gender recognition certificate. A person in receipt of such a certificate will be entitled to be treated as of their new acquired gender for all purposes and will not generally have to reveal their biological sex at birth.
RESTRICTIONS ON THE RIGHT TO PRIVACY
However, the right to respect for these aspects of privacy under Article 8 is qualified. This means that interferences by the State can be permissible, but such interferences must be justified and satisfy certain conditions. Any interference with your right must be:
- in accordance with law
- in the interests of the legitimate objectives identified in Article 8(2)
- necessary in a democratic society.
IN ACCORDANCE WITH LAW
In many cases decided by the European Court of Human Rights (ECHR), interferences with privacy have been in breach of Article 8 because they have not satisfied this first condition. In order for an interference to be in accordance with law, the interference must have a proper legal basis, such as a piece of legislation or rules of a professional body. The law or rule must be understandable, detailed and clear enough to allow a person to regulate his or her behaviour - a secret, unpublished memo in a Government department will not suffice, for example. Some well known scenarios involving interference that could not be justified under Article 8(2) have been the telephone tapping, or bugging, of individuals by the police using procedures and systems not authorised expressly by statute.
THE LEGITIMATE OBJECTIVES
The second condition that the interference must satisfy is that it must pursue an identified legitimate aim. The legitimate objectives set out in Article 8(2) are:
- Acting in the interests of national security, public safety or the economic well-being of the country
- Acting for the prevention of disorder or crime
- Acting for the protection of health or morals
- Acting for the protection of the rights and freedoms of others.
These objectives are widely drawn and it will usually be easy for the Government to say that the interference is in pursuit of one of these legitimate objectives unless there is clear evidence that the interference was for a clearly improper motive. In some cases it will be important to distinguish between a lawful interference in someone’s private life in the public interest, as opposed to an unlawful one which has occurred merely because it is something in which the public might be interested.
NECESSARY IN A DEMOCRATIC SOCIETY
Even if the infringement of privacy is in accordance with the law, and it is for one of the legitimate objectives, it must still be ‘necessary’ in order for it to be justified under Article 8. This is the third and most stringent condition that any infringement must satisfy, bringing in a requirement that the act must be ‘proportionate’.
The requirement of proportionality is often colloquially described as ‘not using a sledgehammer to crack a nut’. In essence, this means that the nature and extent of each interference must be judged against the end it is meant to achieve and any interference with your rights under Article 8 that goes further than is necessary may well be unlawful. For example, a blanket policy of excluding prisoners during examinations of their legally privileged correspondence was considered a disproportionate interference with their rights to privacy and correspondence under Article 8. Although the policy was intended to avoid prisoners disrupting or intimidating staff during searches, and this could be considered a legitimate objective, the blanket nature of the policy was disproportionate, as the same objective could be achieved by excluding only prisoners who attempt to intimidate or disrupt staff.
The more severe the infringement of privacy, the more important the legitimate objective in each case will need to be. In most cases, the interference will be judged against whether it meets a pressing social need, and the extent to which an alternative, less intrusive interference would achieve the same result.
THE DUTY OF PUBLIC AUTHORITIES
The requirement on public authorities to act compatibly with Article 8 of the Convention is contained in Section 6 of the HRA. Section 6 provides that central Government, local Government and other public bodies such as the police and the courts must all act compatibly with your rights.
Public authorities are not only core public bodies such as Government department, the police or local authorities, but also private bodies that perform functions of a public nature. So private companies transporting prisoners for the prison service, or a housing association providing social housing on behalf of a local authority may be considered to be performing functions of a public nature and so be bound by the HRA. However, this is a very complex area of law and it is not always obvious which bodies will be considered public authorities.
See HRA for more information on the duties of public authorities and what you can do if you consider that a public authority has breached your Convention rights.
The Human Rights Act 1998 only binds public bodies, and not individuals, so there still is no general right to protection from invasion of privacy by other individuals in society. This means that you cannot sue your neighbour, or a private company, for invading your privacy. However, because the courts are public authorities, and so have a duty to act compatibly with the Convention rights, and because of the obligation on courts to interpret statutory law compatibly with Convention rights wherever possible, if you have some other ground to bring a claim to court, then once you are before the court you can ask the court to protect your Article 8 rights, and the court will have a duty to do so if possible.
So celebrities who consider that a newspaper has breached their privacy by publishing photographs in situations where they have a reasonable expectation of privacy have been able to go to bring an action for breach of confidence, and then ask the court, as a public authority, to protect their right to privacy. See CONFIDENTIAL INFORMATION. But because of the reluctance to recognise a free-standing principle of protection from invasion of privacy, it is still necessary to pay close attention to the piecemeal protection that currently exists in general common law and different statutes in order to have a full understanding of the privacy rights you enjoy.
The Data Protection Act 1998 can be a very powerful tool to help protect your right to privacy by creating a set of rules for those who handle your personal data, and giving you a number of rights over that personal data and the way it is handled. This section will provide an overview of those rules, what your rights are under the DPA and how you can enforce them.
The DPA also provides you with a right to access personal data which is held about you, but this is covered in the Right to Know section.
The processing of your personal data, as well as engaging your rights under the DPA, often also engages your right to respect for your private and family life, which is protected by Article 8. This is covered in the Article 8 section. Disclosure of your personal data to third parties may also be a breach of confidence, and this is covered in the Breach of Confidence section.
REVEALING YOUR CONVICTIONS AND YOUR INVOLVEMENT WITH THE POLICE
Information about your convictions or other involvement with the police is considered particularly sensitive, and is protected both by data protection laws the right to respect for privacy under Article 8 of the European Convention on Human Rights, as set out in the previous sections. On the other hand, there may be legitimate reasons why it will be necessary to disclose this information. Finding the appropriate balance between the public interest and your right to respect for your privacy is a difficult task.
The Rehabilitation of Offenders Act 1974 (ROA) generally allows people to start with a clean slate after they have paid their debt to society. It does this by providing that after a certain amount of time, certain convictions will become “spent”. Once a conviction becomes spent you are not normally required to disclose it. However, this rule is subject to a number of important and wide-ranging exceptions.
There are different rules that apply when it comes to your own right to withhold information from other people about your past convictions, as opposed to the rights, powers and obligations of other people to share information that they may have about your past convictions and involvement with the police.
TELEPHONE TAPPING AND INTERCEPTION OF COMMUNICATIONS
The interception of telecommunications such as telephone calls and emails and of postal communications can potentially be a very severe intrusion into your privacy. Article 8 of the Convention, which guarantees your right to respect for your privacy, also expressly protects your right to respect for your correspondence, and correspondence can include telecommunications. For this reason the law strictly regulates the circumstances in which your post or telecommunications can be intercepted or monitored. Any interception which is not done in accordance with the law and which cannot be justified as being necessary and proportionate for a legitimate aim is likely to constitute a breach of your human rights.
Regulation of telephone tapping and other forms of interception of communications is governed by the Regulation of Investigatory Powers Act 2000, known as RIPA. RIPA is complex legislation and the informaiton in this section is communicated as clearly as possible.
PRIVACY AND THE MEDIA
One area where the rights under Article 8 of the Convention have had a significant effect is in relation to the media. The publications of stories about your private life can be a clear breach of your right to respect for your privacy, as protected by Article 8. If a public authority were to publish such a story, you would be able to bring an action against them under the Human Rights Act 1998 for breach of your Convention rights. However, in most cases the publisher will not be a public authority, but will be a private company, such as a newspaper, broadcaster, and you will not be able to rely on the Human Rights Act 1998 to bring actions against private bodies.
The laws of defamation, trespass, nuisance, surveillance, harassment etc, do apply to the media, so if they apply equally to the media, so if in getting the story, or in publishing the story, the media has committed one or more of these torts (civil wrongs), you may be able to sue them for damages. But there is no free standing tort of breach of privacy in English law, so you will not be able to bring an action for breach of privacy per se against a private body. However, the Human Rights Act 1998, which requires public bodies to act compatibly with your Convention rights, also expressly binds courts and tribunals. So if you bring a private law action against a private body, and you consider that the private body has acted in breach of your Convention rights, then once in front of the court you can ask that the Court comply with its obligation under the HRA and make sure that your Convention rights are protected.
In this way, the HRA allows individuals to seek redress in the domestic courts for breaches of their Convention rights committed by another private body. In particular, the courts have, through this process, developed the law of confidence to provide some protection against breaches of your privacy committed by private bodies (see CONFIDENTIAL INFORMATION). In the case of Campbell v Mirror Group Newspapers , the model Naomi Campbell sued the Daily Mirror newspaper when it published photographs of her leaving a meeting of Narcotics Anonymous. The case went all the way to the House of Lords, who upheld her claim. The House of Lords stated that tort of breach of confidence had developed such that there now was a tort that would be better termed as ‘misuse of private information’.
So if a media company publishes information about you which is information that should be considered private, that is to say, information in respect of which you had a ‘reasonable expectation of privacy’, then you may be able to bring an action for misuse of private information. The question of whether or not the information will be considered information in respect of which you have a ‘reasonable expectation of privacy’ is a broad one, which takes account of all the circumstances of the case, including:
your particular attributes, such as whether you are a person normally in the public eye, or whether you are a child or an adult (children have a greater expectation of privacy),
- the nature of the activity in which you were engaged in
- the place at which it was happening
- the nature and purpose of the intrusion
- the absence of consent and whether it was known or could be inferred
- the effect on the you of the publication.
If the court considers that you did have a reasonable expectation of privacy, then the court will need to balance your right to respect for your private life, which is protected by Article 8. If the balance is struck in your favour, then publication will be an infringement of your article 8 rights, and publication will be a misuse of personal information. This means that the court will be able to order an injunction prohibiting the publication, or to award you damages to compensate for the breach of privacy, whereas if the balance is struck in favour of the publisher, there will be no breach of your Article 8 rights and so you will not be entitled to either an injunction or to damages.
If you find yourself subject to unwanted press intrusion of this nature, then you should take legal advice in light of the latest developments of the law. This is a rapidly changing area. You may have a potential action for harassment under the PHA. You may have an action for breach of confidence. You may have an action for breach of the DPA. You will also have the right to complain to either Ofcom, the Office of Communications, which regulates UK television and radio services or the Press Complaints Commission. It is worth noting that the Press Complaints Commission is more likely to be responsive to privacy complaints involving ‘intrusion into grief or shock’, such as the publication of photographs taken at a funeral.
However, in every case, there will be a requirement to protect the right to freedom of expression and the right of the media to publish material of public interest. Each case will need to be carefully examined to see if the interests of freedom of expression outweigh your rights to private life.
The court guidelines have been developed in consequence of the express provisions in the HRA dealing with claims for injunctions, which concern freedom of expression. Freedom of expression is, of course, a right which is also incorporated by the HRA through Article 10. In the context of the media, there will always be a tension on the one hand between protecting the right to freedom of expression and a free press with respect to rights of privacy on the other hand. Section 12 of the HRA deals expressly with this tension and makes it clear that any person seeking to restrain publication of material which might affect the exercise of freedom of expression will:
- Take all practical steps to notify the intended publisher or show that there are compelling reasons why that person should not be notified
- Need to satisfy the court that the underlying claim is likely to succeed at trial
- Need to deal with the court’s obligation to have particular regard to the Convention right to freedom of expression
- Where such material is journalistic, literary or artistic, will need to deal with the court’s obligation to have particular regard to:
(a) the extent to which the material is, or is about to become, available to the public and it would be in the interest of the public for it to be published
(b) any relevant privacy code.
This provision is designed to ensure that freedom of expression is not stifled by well-timed injunctions sought by persons at a time when the publisher of the material will not be able to deal with the application properly. However, it does not prevent you from seeking to obtain an injunction in circumstances where there has been an unjustifiable breach of your privacy and you have a good case of succeeding in litigation against the person responsible.