Key Statutes Regarding Article 8: The Right To Privacy

In order to adequately analyse the infringement of Article 8 rights, it is sometimes helpful to refer to statutes other than the Human Rights Act 1998. Below is a list of statutes, which contain elements of Article 8 rights that might be breached, legally or illegally, under different circumstances.

Protection from Harassment Act 1997

Here, the offence of "stalking" was defined in law. This is where a course of conduct is undertaken by D, where he knows or ought to know that his conduct will cause harassment, alarm or distress. The rules on harassment were further extended to include harassment via letters, telephone calls and messages or online communications in the Malicious Communications Act 1998.

Copyright, Designs and Patents Act 1998

The person who takes a photograph usually has the rights to that photograph, unless the person who commissioned the photographno longer wants it to be published. This was seen in the case of Douglas V Hello! (2006) where the claimant argued that the rights to publish the photos taken had not been granted by them.

Data Protection Act 2018

Data-protection principles restricting the storage and processing of personal and sensitive data that must be complied with - based on GDPR (General Data Protection Regulations). Under the previous legislation, the DPA 1998, damages were awarded in Douglas v Hello! (2006) for a breach of DPA by publishing photographs against the will of the claimant.

Regulation of Investigatory Powers Act 2000

Covert surveillance, for example phone-tapping, is criminalised, unless reasonable steps have been taken by governments or employers to inform employees of the possibility of it happening. In Barbulescu v Romania (2017) https://www.echr.coe.int/Documents/Press_Q_A_Barbulescu_ENG.PDF (not a UK-based case), the claimant's emails were monitored by his employer, who then sacked him for using the email service for personal use. Mr Barbulescu knew that the emails would be monitored, but did not realise to what extent they would be monitored, or the nature of the emails monitored. The ECtHR held that there was a breach of Article 8 for that reason.

Police and Criminal Evidence (PACE) Act 1984

Police powers are often limited, regarding their legal authority to do such things as stop, search, arrest, detain and interrogate. This is especially so, if the searches are intimate. A breach of Article 8 was found by the ECtHR to have occurred in Wainwright v UK (2007), where a woman and her disabled son were strip-searched by prison officers whilst visiting relatives in prison in 1997 (even before the HRA 1998 came into force). Despite strip-searches being allowed as a necessary measure to protect security in prisons, it was deemed in this instance to be a step too far and therefore did breach the right to privacy.

Defamation Act 2013

Protects right to reputation, whilst attempting to balance privacy against freedom of expression.

Investigatory Powers Act 2016 (AKA the "Snooper's Charter")

New powers granted to the authorities to retain and intercept individual and bulk data, despite ruling of ECJ that bulk data retention infringes privacy unless strictly limited.

Exam Tip:

When explaining why there might be a breach of Article 8, or any other Article, try to mention how this rule is incorporated into UK law. For example, instead of writing “The police breached Article 8 because they interfered with Tom’s right to privacy when they searched him”, you could write “Tom’s right to privacy under Article 8 was breached when the police ignored PACE guidance in conducting an intimate search, which was unnecessary, given that the circumstances were not serious enough”.