Guide on Article 8 of the Convention – Right to respect for private and family life
criminalisation of all private sexual activity, such as incest (Stübing v. Germany), or sadomasochistic sexual activities (Laskey, Jaggard and Brown v. the United Kingdom). 168. In a series of cases, the Court held that any ban on the employment of homosexuals in the military constituted a breach of the right to respect for private life as protected by Article 8 (LustigPrean and Beckett v. the United Kingdom; Smith and Grady v. the United Kingdom; Perkins and R. v. the United Kingdom) 26.
C. Privacy27 169. As the Court has consistently held, the concept of “private life” extends to aspects relating to personal identity, such as a person’s name, photo, or physical and moral integrity (Vavřička and Others v. the Czech Republic [GC], § 261); the guarantee afforded by Article 8 is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life (Von Hannover v. Germany (no. 2) [GC], § 95). Furthermore, the concept of “private life” is a broad term not susceptible to exhaustive definition, which covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of a person’s identity, such as gender identification and sexual orientation, name or elements relating to a person’s right to their image. It covers personal information which individuals can legitimately expect should not be published without their consent (Axel Springer AG v. Germany [GC], § 83; L.B. v. Hungary, §§ 21-22). The concept of “private life” also encompasses the right to confidential information relating to the adoption of a child (X and Others v. Russia, §§ 62-67, as regards the publication on the Internet of a judicial decision, mentioning the applicants’ names and the names of their adopted children). A decision by a private individual to place an anonymous advertisement seeking a surrogate did not serve as an argument for reducing the level of the protection that should have been afforded to him under Article 8 (Hájovský v. Slovakia, § 35). 170. With respect to surveillance and the collection of private data by agents of the State, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of “private life” for the purposes of Article 8 § 1 of the Convention. That was all the more so in a case where some of the information had been declared false and was likely to injure the applicant’s reputation (Rotaru v. Romania [GC], § 44). In applying this principle, the Court has explained that there are a number of elements relevant to consideration of whether a person’s private life is concerned by measures that take place outside a person’s home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor (Benedik v. Slovenia, § 101). A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed circuit television) is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. It is for this reason that files gathered by security services on a particular individual fall within the scope of Article 8, even where the information has not been gathered by any intrusive or covert method (P.G. and J.H. v. the United Kingdom, § 57). See also with respect to 26 27
See Identity and autonomy and Home. See also the Guide on Data protection.
European Court of Human Rights
44/161
Last update: 31.08.2021
