Guide on Article 8 of the Convention – Right to respect for private and family life
screening of correspondence (Campbell v. the United Kingdom, § 33), the making of copies (Foxley v. the United Kingdom, § 30) or the deletion of certain passages (Pfeifer and Plankl v. Austria, § 43); interception by various means and recording of personal or businessrelated conversations (Amann v. Switzerland [GC], § 45), for example by means of telephone tapping (Malone v. the United Kingdom, § 64, and, as regards metering, §§ 83-84; see also P.G. and J.H. v. the United Kingdom, § 42), even when carried out on the line of a third party (Lambert v. France, § 21); and storage of intercepted data concerning telephone, email and Internet use (Copland v. the United Kingdom, § 44). The mere fact that such data may be obtained legitimately, for example from telephone bills, is no bar to finding an “interference”; the fact that the information has not been disclosed to third parties or used in disciplinary or other proceedings against the person concerned is likewise immaterial (ibid., § 43). This may also concern: the forwarding of mail to a third party (Luordo v. Italy, §§ 72 and 75, with regard to a trustee in bankruptcy; Herczegfalvy v. Austria, §§ 87-88, with regard to the guardian of a psychiatric detainee); the copying of electronic files, including those belonging to companies (Bernh Larsen Holding AS and Others v. Norway, § 106); the copying of documents containing banking data and their subsequent storage by the authorities (M.N. and Others v. San Marino, § 52); and secret surveillance measures (Kennedy v. the United Kingdom, §§ 122-124; Roman Zakharov v. Russia [GC] and the references cited therein; Azer Ahmadov v. Azerbaijan, § 62). A situation where an individual under secret surveillance happens to be a member of a company’s management board does not automatically lead to an interference with that company’s Article 8 rights (Liblik and others v. Estonia, § 112, in which, however, the Court saw no reason to distinguish between the correspondence of a member of the management board of the applicant companies and that of the applicant companies themselves even if no secret surveillance authorisations had been formally issued in respect of the companies). 517. A “crucial contribution” by the authorities to a recording made by a private individual amounts to interference by a “public authority” (A. v. France, § 36; Van Vondel v. the Netherlands, § 49; M.M. v. the Netherlands, § 39, concerning a recording by a private individual with the prior permission of the public prosecutor).
2. Positive obligations 518. To date, the Court has identified several positive obligations for States in connection with the right to respect for correspondence, for instance: the State’s positive obligation when it comes to communications of a non-professional nature in the workplace (Bărbulescu v. Romania [GC], §§ 113 and 115-120). an obligation to prevent disclosure into the public domain of private conversations (Craxi v. Italy (no 2), §§ 68-76); an obligation to provide prisoners with the necessary materials to correspond with the Court in Strasbourg (Cotleţ v. Romania, §§ 60-65; Gagiu v. Romania, §§ 91-92); an obligation to execute a Constitutional Court judgment ordering the destruction of audio cassettes containing recordings of telephone conversations between a lawyer and his client (Chadimová v. the Czech Republic, § 146);
European Court of Human Rights
116/161
Last update: 31.08.2021
