Chapter 15 Guidance on answering the exam questions

1. What is meant by ‘private life’ in the context of Article 8? Do you agree that, as developed by the ECtHR, the term is imprecise and there is a lack of certainty over what is encompassed by it?

• This essay is about the way in which an important legal terms has been defined and applied by the courts, doing so on the basis of the analysis by the ECtHR, and whether it is too broadly defined so that it lacks proper certainty which can guide actions.
• The seminal definition is in Pretty v UK which should be discussed. It goes much further than privacy in the sense of the circle of free action which surrounds the individual. Factors identified include: physical and psychological integrity, matters going to identity such as gender, matters essential for self-development, and so on.
• Of particular importance is the idea of autonomy (self-directedness) which the ECtHR brings into the concept in Pretty.
• It would be a good idea to back up your list of features with examples from the case law of the ECtHR and also, perhaps, of the domestic courts.
• The essay requires analysis in terms of the certainty and precision of these terms, such as integrity, identity and self-development that form an important part of the definition.
• Further it should be pointed out that the concept is always developing. A good example is Sidabras where equal access to employment was understood to be an aspect of private life.
• One argument is that the concept of private life must develop and change as European social norms, customs and expectations change. Otherwise the Convention would be stuck in the 1950s. This ties in with the general argument about the evolving nature of the Convention as a whole.
• Another point is to recognise that there is, indeed, some degree of uncertainty but that any problems are resolved through the idea of justification. The more the idea of private life extends into new fields, the less may be required from states by way of justification or, to put it another way, the wider the margin of appreciation is likely to be.
• In conclusion you might consider that “private life” is always going to be controversial when it involves placing private interests above those of the public interest as understood by democratic and accountable governments. A good example to end on might be Nicklinson in the UK courts and the question of who decides whether or not an interference with private life is justified.

2. As a consequence of adverse decisions by both the European Court of Human Rights and, in respect of EU law, the Court of Justice of the European Union, on surveillance and data retention, the UK government needs to reconsider the law. Your advice is sought on the principles of law that apply if the law is to be compatible with Article 8.

• This raises important issues about the standards of legal regulation of data etc. It clearly assumes some consideration of the CJEU’s decision in Digital Rights Ireland and consequent UK cases (especially Davis & Watson which, in May 2016, had been referred to the CJEU).
• Any new law must be compatible with Article 8. Before January 1 2021 it had also to be consistent with the Charter of Fundamental Rights (EU). Since that date the Charter no longer applies directly in the law of the UK (see the European Union (Withdrawal) Act 2018) however the principles of EU law on which Charter provisions were based may still apply.
• Next discuss compatibility with Article 8 ECHR. It is a good idea to show your knowledge of this as a qualified right by going through the steps of reasoning that courts themselves go through.

1. Note that surveillance and the storage and use of data is likely to engage with Article 8(1) – as a matter of private life and correspondence.
2. Acts of surveillance and also of storage, organisation and use of data are likely to be interferences with private life. A point to note is that this can include surveillance of people even when they are in public places.
3. Therefore the issue must focus on justification in terms of Article 8(2).
4. Firstly, is the interference “in accordance with the law”. This means that the new law on which your advice is sought must meet the standards of accessibility, foreseeability and non-arbitraryness that the Convention concept of “law” requires. These standards are relative to context. Of considerable importance is that, in the context of surveillance, etc., the law must contain adequate safeguards to protect from abuse. This is a matter which (because it involves the requirements of the rule of law) gives little by way or margin of appreciation. A case such as Marper v UK indicates some of the features that must be present if the standard of legality is to be met.
• In the context of surveillance and data retention, it is noteworthy that the ECtHR has not required there to be prior judicial scrutiny – i.e. that a judge should issue a surveillance warrant or at least supervise at the time the issuing of a warrant. There must be judicial surveillance but this can be after the event (as in the UK system under RoIPA 2000 – see Kennedy v UK). However, in Digital Rights Ireland, the CJEU (considering Article 8 of the Charter which can give more extensive protection regarding personal information than required by Article 8 ECHR) has seemed to require judicial supervision at the time of issuing the warrant. Many of these principles have been adopted by the Investigatory Powers Act 2016 but serious questions under article 8 still apply. The ECtHR has found such a breach in relation to inadequate safeguards applying to the retention of ‘bulk data’ (Big Brother Watch v UK).

• Secondly, surveillance and data protection must be for one of the legitimate purposes listed in Article 8(2). These are broadly drawn and so are usually not likely to raise an issue in this context.
• Thirdly, it must be possible under the new scheme for the proportionality of any system to be adjudged by a judicial process. Again, this is hugely a matter of context and in the context of surveillance, etc., a restriction will only be proportionate if done for a serious purpose (economic development, for example, may be harder to justify than the protection of national security) and with proper safeguards (necessary for legality, as mentioned above).
• If the new law contains these matters it is likely to be compatible with Article 8. Your conclusion could be to stress the importance of proper safeguards and that this is a matter of law over which states have very little margin of appreciation.