Defining Private Life Under the European Convention on Human Rights by Referring to Reasonable Expectations

Abstract

This article proposes that the European Court of Human Rights should assess the applicability of private life under the European Convention on Human Rights by asking whether the applicant had a reasonable expectation of privacy or personal choice in the matter involved. The reasonableness of an expectation should depend on an empirical analysis of member-State practices, and private life should mean what a majority of the member States say it means.

The European Convention on Human Rights guarantees certain basic human rights to over 800 million people in 46 countries. Article 8 of the Convention provides, among other things, that everyone has the right to respect for his or her private life. Since the effective date of the Convention in 1953, the European Court and Commission of Human Rights have defined private life in a piecemeal fashion and without reference to any general framework. Many commentators have criticized this approach as unprincipled.

Perhaps in response to that criticism, the Court has in the last several years made greater strides in this area. Several recent judgments of the Court, including a particularly important decision from 2004, now refer to a person's reasonable expectations of privacy as the possible standard for analyzing the applicability of private life in certain circumstances. This article traces the emergence of the reasonable-expectations test in the Court's judgments and posits that if such a test is to be the foundation for future analyses of private life, the test should be expanded to apply in all cases in which private life is alleged to apply and, more importantly, be based on objective and empirical indicia. Among other things, I suggest how the Court should apply such a test and I discuss lessons learned in the United States (and elsewhere) from its use of a similar approach.

Boiled down to its essential characteristics, this article proposes that the Court could analyze all private-life cases with some species of the following principle: A public authority may not without proper justification interfere with or fail to respect matters in which a person has a reasonable expectation of privacy or personal choice. But before the Court may hold an expectation to be reasonable, the Court must find, at a minimum, an emerging consensus among the member States of the Convention (as determined by legal and societal norms) that recognizes the right of privacy or personal choice invoked by the applicant.

Keywords: Privacy, private life, European convention on human rights, Article 8, reasonable expectations, personal choice, autonomy, personality, consensus, majority

JEL Classification: K33