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

“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.”

Inforrm's Blog

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”.