Article 8

Right to private and family life: Everyone has the right to respect for his private and family life, his home and his correspondence

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 or others.

This right is very broad in scope and covers the following areas:

• Privacy: this is defined broadly and relates to all aspects of privacy and includes sexual identity, dress and freedom from intrusion by the media.

• Family life: this covers all close and personal ties of a family kind, not only those of a blood or formalised nature. It includes the right for a family to live together and enjoy each other’s company.

• Physical, psychological and moral well-being: this covers the right to well being through retaining autonomy, choice and dignity. It requires that there is access to information, and can require that an individual’s official records, such as medical information, are kept private and confidential. It includes participation in decisions that affect an individual’s life.

• Home: this covers the right of the home life of an individual to be respected and to enjoy their homes peacefully and without exposure to excessive noise or environmental pollution.

• Correspondence: this covers all forms of communication with others such as phone calls, letters, emails etc.

The rights under this Article may be restricted, but any interference must be necessary and do no more than is needed (i.e. be proportionate link) to meet one of the legitimate aims of protecting national security, public safety, the economic well being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.

This means that although this right is very broad in scope and therefore may be relevant in a wide range of circumstances, there is a requirement to balance the rights of the individual with the needs of the rights of others and of society in general. 

What this means for local authorities

Officials should be aware that their policies or actions might interfere with an individual’s right to privacy, and should try to ensure that their decisions do not interfere with these rights, or at least if it is necessary to do so, that they can justify their actions or decision as being no more than is required to meet one of the legitimate aims.

This right may well be relevant for officials who are involved in providing or managing housing, for example to gypsy travellers; who require entry to properties; who are involved in investigation or monitoring who might make searches or homes or use covert surveillance or CCTV; who deal with families or children, especially where there is a risk that a family might be separated;  who provide medical treatment or social care, recognising where people might have the right to refuse medical treatment.

This right will be particularly relevant for local authorities as employers, for example in respecting employee’s privacy when monitoring e-mails and internet usage; when imposing dress codes or drug testing at work; in respecting the privacy of transgender and gay and lesbian people.

Case law examples

• In London Borough of Hounslow v Powell, the Supreme Court set out guidance when eviction from local authority housing amounts to a breach of tenant’s human rights.

• The Court of Session in South Lanarkshire Council v McKenna confirmed that landlords in Scotland must consider whether eviction is proportionate, given an interference with Article 8, which is particularly likely in the case of vulnerable occupants.

• In Winterstein v France, the European Court of Human Rights found that there was a violation when gypsy traveller families who had lived in the same place for many years without causing any unlawful nuisance were evicted. The Court said that national authorities should take account of the fact that the claimants were a vulnerable minority which required special consideration to be paid to their needs and their different way of life when it came to devising solutions to the unlawful occupation of land or deciding on possible alternative accommodation.

• In Copland v UK, the European Court of Human Rights held that Article 8 was infringed when a public sector employer monitored, collected and stored personal information relating to an employee’s telephone, e-mail and internet usage at work. The Regulation of Investigatory Powers Act now regulates interception of communications on all private networks, including mobiles and voicemail.

• In McGowan v Scottish Water, the Employment Appeal Tribunal (EAT) upheld the tribunal's decision that the employee's human rights had not been breached by the company when it used covert surveillance of his home to establish whether he had been falsifying his timesheets. This principle was confirmed more recently in the case of City and County of Swansea v Gayle, where the EAT decided that covert surveillance may be justified to prevent crime and protect the rights and freedoms of others.

• In Peck v UK, the European Court of Human Rights held that there was a breach of the right to privacy when a council released CCTV footage showing the claimant shortly after he had attempted suicide, where there was no attempt to seek the claimant’s consent or obscure his identity.