Article 8 and the “outside world”: privacy, reputation and employment – Hugh Tomlinson QC

The Article 8 right to respect for private life has many facets and has often seemed in danger of uncontrolled expansion.  The Court of Human Rights has often noted that private life is “not susceptible to exhaustive definition”, embracing “multiple aspects of the person’s physical and social identity”. 

There are numerous statements in the cases to the effect that the domain of Article 8 extends beyond an individual’s own “inner circle” and that in principle it protects “the right to establish and develop relationships with other human beings and the outside world.”  Two aspects of this broader extension of the right are of particular interest.

First, in a consistent line of cases going back to 2003 the Court has held that the notion of private life also covers a right to respect for reputation (see our 2010 posts “Is there a right to reputation?” Part 1 and Part 2 by Heather Rogers QC). This is said to be because a person’s reputation forms part of his or her personal identity and psychological integrity and is critical to relationships with others. The analysis of this right remains confused and controversial (see, for example, T Aplin and J Bosland “The Uncertain Landscape of Article 8 of the ECHR: The Protection of Reputation as a Fundamental Human Right?”) and appears to extend the application of Article 8 beyond the intention of its framers.

Second, although the Convention does not include a “right to employment”, the concept of private life has been held to extend to activities of a professional or business nature on the basis that such primarily economic activity has a critical social component: “It is, after all, in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world.”

But what limits are imposed on Article 8’s expansion into these areas?  Some light was cast on this issue by the Grand Chamber of the Court of Human Rights in the recent case of Denisov v Ukraine (Judgment of 25 September 2018)(currently not available on Bailii). The Court’s found an Article 6 violation and the discussion of Article 8 has attracted little attention. The case however provides an up to date summary of the current state of the Article 8 case law in relation to reputation and employment and the limits of Article 8 in those areas. Unless otherwise indicated, references to paragraph numbers in this post are to this Grand Chamber judgment.

Reputation

In relation to reputation and Article 8 the position can be summarised as follows:

• A person’s reputation forms part of his or her personal identity and psychological integrity and is within the scope of Article 8 even if that person was criticised in the context of a public debate [96].
• Article 8 cannot, however, be relied on in order to complain of damage to reputation which is a foreseeable consequence of a person’s own actions; this covers criminal offences and other misconduct [98]
• An attack on a person’s reputation must attain a certain level of seriousness – it must be made in a manner causing prejudice to personal enjoyment of the right to respect for private life [112]. An applicant must identify, explain and substantiate the “concrete” repercussions on their private life and the nature and extent of their suffering. [114]
• In cases which concern allegations of criminal conduct the “presumption of innocence” must be taken into account (see Jishkariani v. Georgia [2018] ECHR 740 [41]).
• When considering Article 8 claims relating to reputation there must be a fair balance between an individual’s right to protection of reputation and the other party’s right to freedom of expression under Article 10 (Jishkariani [43]). The criteria applicable to deciding where the balance lies are the contribution to a debate of general interest, how well‑known the applicant was and the nature of her prior conduct, subject of the statements, the content, form and consequences of the statements, and the method of obtaining the information and its veracity and the severity of the sanction (Axel Springer AG v Germany (2012) 55 EHRR 6 [89] to [95]).

Employment

As to employment cases

• Private life may be affected by dismissal, demotion or non-admission to a profession [115].
• Article 8 can be engaged in two types of case: (a) where matters relating to private life are the reason for the dispute and (b) where the measure in issue has adverse impacts on private life [102]
• Cases in category (a) include those in which an applicants’ employment was affected by their sexuality or the way they conducted their private lives [104] to [105].
• Case in category (b) include those in which dismissal cause an individual serious personal and reputational damage or has serious adverse impacts on the applicant’s choices concerning professional and personal life [108].
• In category (b) cases the “threshold of severity” is of crucial importance and Article 8 will only be engaged where the consequences are very serious [116]. The applicant must substantiate the nature and extent of suffering and show a causal connection with the impugned measure [117].

In the Denisov case the dismissal of the application from the position of president of the Kyiv Administrative Court of Appeals for alleged managerial failings did not engage Article 8. The reasons for his dismissal had not been linked to his private life and the dismissal itself had not had a significant impact on his private life after that [129]. The consequences he had suffered in terms of lost prestige for no longer being the president of a court or because of the loss of salary did not cross the “threshold of seriousness” and Article 8 was not engaged [133].

Some Conclusions

The Grand Chamber has reiterated that the right to respect for private life must now be taken to include a “right to establish and develop relationships with other human beings and the outside world” [95]. It has, however, also emphasised the importance of the “threshold of severity” before such a right comes into play on the particular facts of the case.

Two final points should be noted in relation to the Article 8 right to reputation.

Firstly, as it relies on reputation being as aspect of “private life” an individual cannot complain of an interference with the right to reputation if the negative effects on private life are foreseeable consequences of their own misconduct. This is very similar to the approach adopted by the High Court of this Jurisdiction in NT1 v Google and in Ireland in Townsend v Google under the pre-GDPR data protection legislation. As Warby J concluded in NT1: “A person who deliberately conducts himself in a criminal fashion runs the risk of apprehension, prosecution, trial, conviction, and sentence. Publicity for what happens at a trial is the ordinary consequence of the open justice principle.” The doctrine would also presumably operate in a similar method to the defence of truth to libel  claims, although its precise nature and limits are unclear.

Secondly, the “threshold of severity” has an interesting overlap with section 1 of the Defamation Act 2013. According to the Grand Chamber, an individual must allege and prove with “convincing evidence” serious interference with their private life – “concrete” repercussions – before the “right to reputation is engaged”. This may be understood as requiring proof of damage, which would be a stricter test than that laid down by the Court of Appeal in the Lachaux case (see the Inforrm post on that decision).  In addition (and in contrast to the section 1 approach) it seems to be necessary to consider both the seriousness of the allegation and the effect on the individual.  It will be interesting to see whether any light is cast on this apparent divergence of approach by the Supreme Court in Lachaux.  Strasbourg and domestic law appear to be travelling in the same direction but not at the same speed.

Hugh Tomlinson QC is a member of Matrix Chambers and an editor of Inforrm.