Article 8 represents one of the most contested rights we enjoy in recent history. Setting out our freedom to enjoy a part of our lives which is not regulated as stringently, the article is written as so:
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 well-being 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.
What does this mean?
The article is split into 2 distinct parts; the first setting out what your right is and the second setting out where the authorities can ignore that right for their own interests. The important part of the scope of both our rights and the exceptions to them here, is a there a rather great discretion that the domestic court’s possess in deciding what constitutes the scope of our right to respect for private and family life and what constitutes a valid exception to that right. This is called the ‘margin of appreciation’, first discussed in relation to Article 8 in the case of Handyside (1976) – well this case actually discussed Article 10, but we’ve just taken the judgment and applied it to 8 too.
The reason for the margin of appreciation is quite simple really, not only is a right to privacy sometimes contentious anyway, it is also something that certain countries allow more than others. For instance, those in North Korea would be astounded by the fact that we actually have protections against authorities monitoring our every move; whether physical or technological. It is generally accepted that there are too many differences between cultures and societies views on privacy in differing signatory states to the European Convention, for the European Court of Human Rights (ECtHR) to have the final say over its scope. Some countries are simply more liberal than others and there would be problems of a democratic deficit if one states position on privacy had to be adopted by all (in fact, this is quite a common argument for a ‘Brexit’ – the inexcusably cringe way of saying you don’t like the EU now.
So, ‘what does a right to privacy mean?’ I don’t really know. No-one really knows. Not even the courts know until they start saying it I don’t think. The best answer I can give is that Article 8 certainly gives you a right to a certain amount of privacy. How much privacy very much depends on the context in which the case is being discussed, background to it, how sensitive the topic is etc. For example, a right to a private and family life can mean that you have a right to act freely in your home – you can smoke, dance awfully to Bieber’s new tracks or cry uncontrollably because Mourinho has left Chelsea (not that I do any of these). However, this right to privacy does not afford you to abstain from abiding by the law. If you choose to grow marijuana in your house, even for personal consumption – you will not be covered by the right to privacy. The right is there to protect you from having your private life interfered with by the state, it is not a ‘get out of jail free’ card and even if you think it is your right to grow and burn your own weed under Article 8, you’re wrong (with the law as it currently is). So, there are restrictions to it, just some limits are not as clear as others.
How well is the right protected?
Due to this certain lack of clarity over where the restrictions are, it is hard to judge how well the Article is applied. You could argue that we have more privacy than a country like Russia for example, so we are doing well. However, we equally have less privacy than somewhere like Switzerland for example, so in that comparison it’s not that great.
One thing is for sure – there have been an incredible number of debates about how well this right to privacy should be protected recently, especially in light of recent terrorist and cyber attacks. 2015 will go down as an incredible year for the debate around Article 8. Simply this right is qualified, it is a right with exceptions (as mentioned above). What those exceptions protect are security and social interests and therefore we have seen many people try to suggest why their opinion on where that balance should lie is best. How well they find this balance is ultimately up to you to decide. I, nor anyone else can tell you where the balance is – it is for you to find yourself, asking how comfortable you are with surveillance, non-surveillance, authoritarian protection or liberal freedom.
As I said this year has been incredible for considering these questions. We have had recent discussions on the “Snoopers Charter” and Theresa May’s proposed bill which will oblige network providers to store our online activities for a year. We have had the recent phone hacking scandals, in which publishers (most famously Murdoch’s ‘News of the World’) hacked the phones of celebrities and victims of crime in a disgusting attempt to get a scoop. Even if we move away from politics, we consistently consider what levels of privacy we think should be allowed. Should celebrities enjoy more privacy, or do we have a right to know who they slept with because they’re famous?
Is it acceptable to ignore a friend request from your Mum because you think all she’ll do is snoop on you? Should the urinal rules be put into legislation, because I feel far too uncomfortable with this guy being so close to me while I pee? These are all questions we constantly ask and whether we realise it or not, we are slowly building an opinion on this right, how it should apply and what its scope should be.
This right is phenomenal for two reasons in my opinion; firstly, it affords us a little bit of solace in an ever-growing world of surveillance, allowing us to enjoy our own company and that of our families, without feeling like we have to perform in a certain way to ensure our well-being. Secondly, it is one of the few rights that allows each of us who have the right, to truly decide how qualified it should be. It is the first right we have so far discussed that engages people to discuss their freedoms, which can only be positive for their development and progression. I am very conscious writing this that I am aiming to explain what these rights mean and with this one I have pretty much said, “I don’t know”. But, that is as clear an answer as I can possibly give. The courts have amassed huge amounts of case law considering what the scope for our right to privacy is and yet it is constantly changing still. Like I said previously, these rights are not stagnant, they are dynamic and move with the times and beliefs of the society they participate in. So, we have a right to privacy and that right has certain exceptions for our own protection and interests – that is your basic definition of our right to privacy. What you now need to do is build upon that foundational explanation and ask, what right to privacy should I have?
I hope you’ve enjoyed this rather strange article in the grand scheme of things! As always, any questions – please send them to me and I’ll answer ASAP. I hope you all enjoy a festive Friday and I’ll see you again tomorrow for Article 9!