The ICCPR, the American Convention and the European Convention allow for limitations of the right to privacy in certain instances. The Human Rights Committee has set out in General Comment 16 that any interference must be lawful, i.e. prescribed by precise and circumscribed laws that themselves comply with the aims, provisions and objectives of the ICCPR. Furthermore, interference may not be arbitrary; reasonableness is required as states could otherwise introduce highly oppressive interferences provided that they were set out clearly in law. The ICCPR does not catalogue permissible limitations and the Committee has given states a wide margin of appreciation in this regard. Similarly the American Convention does not set out permissible limitations. The European Convention, on the other hand, enumerates reasons for permissible limitations. The doctrine of non-interference by the state is, as far as Article 8 is concerned, firmly established in the right to privacy. In a democratic society, the individual is entitled to live his or her daily life without the state monitoring or controlling his/her activities. The Court confirmed this primary duty of the state to abstain from interference in its judgment in Airey v. Ireland(Application No. 6289/73, Judgement of 9 October 1979) stating that the object of Article 8 is ‘essentially that of protecting the individual against arbitrary interference by the public authorities’. For example, private citizens have a general right to receive uncensored mail, to live without publicity, and to establish and develop relationships with other persons. The last-mentioned aspect of the right to privacy obviously has implications for the concomitant right to family life, although nothing in the European Convention prohibits a state from regulating some areas of inter-personal relationships. Article 8(2)itself legitimises a series of restrictions in areas where states have long regulated individual actions, for example in relation to the age of sexual consent and divorce. On the other hand, it is in relation to personal relationships that the non-interference principle is often invoked. Regarding adults, the Commission and Court have generally taken the view that there is no interference with the right to private or family life so long as the state does not interfere with its de facto existence and daily conduct. For example, in Johnston et al. v. Ireland (Application No. 9697/82, Judgement of 18 December 1986), which concerned the unavailability of divorce under Irish law, or of the recognition of family life outside marriage after the breakdown of the marriage of one of the parties and a third person, the Court held that ‘Article 8 cannot be regarded as extending to an obligation on its part to introduce measures permitting divorce and re-marriage’.
In Pretty v. The United Kingdom (Application No 2346/02, Judgement of 29 April 2002, also discussed under the right to life, Euthanasia and Abortion) the European Court discussed justified interference with the right to privacy. In this case the applicant alleged that the prohibition of assisted suicide was an unjustified interference with her right to privacy under the European Convention, and that the right to self-determination encompassed the right to make decisions about one’s body and what happened to it. The Court found that the applicant was prevented by law from exercising her choice to avoid what she considered an undignified and distressing end to her life and did not exclude that this might constitute an interference with her right to respect for private life as guaranteed under Article 8(1). However, when discussing whether the interference was ‘necessary in a democratic society’ the Court stated:
70. According to the Court’s established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake.
71. The Court recalls that the margin of appreciation has been found to be narrow as regards interferences in the intimate area of an individual’s sexual life [?]. Although the applicant has argued that there must therefore be particularly compelling reasons for the interference in her case, the Court does not find that the matter under consideration in this case can be regarded as of the same nature, or as attracting the same reasoning.
72. The parties’ arguments have focused on the proportionality of the interference as disclosed in the applicant’s case. The applicant attacked in particular the blanket nature of the ban on assisted suicide as failing to take into account her situation as a mentally competent adult who knows her own mind, who is free from pressure and who has made a fully informed and voluntary decision, and therefore cannot be regarded as vulnerable and requiring protection. This inflexibility means, in her submission, that she will be compelled to endure the consequences of her incurable and distressing illness, at a very high personal cost.
76. The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government have stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. The Select Committee report indicated that between 1981 and 1992 in twenty-two cases in which “mercy killing” was an issue, there was only one conviction for murder, with a sentence of life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences (paragraph 128 of the report cited at paragraph 21 above). It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.
77. Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant’s husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable.
78. The Court concludes that the interference in this case may be justified as “necessary in a democratic society” for the protection of the rights of others and, accordingly, that there has been no violation of Article 8 of the Convention.
In Glass v. The United Kingdom (Application No. 61827/00, Judgement of 9 March 2004) the mother of a severely disabled child claimed that hospital staff administering medical treatment to her child against her wishes had violated the right to privacy in relation to them both. The European Court found it only necessary to examine the necessity of the interference in relation to the child and stated that ‘the Court considers that, having regard to the circumstances of the case, the decision of the authorities to override the second applicant’s objection to the proposed treatment in the absence of authorisation by a court resulted in a breach of Article 8 of the Convention.’
Although the state in principle may not interfere with an individual’s private right to develop relationships with other persons, the human rights supervisory organs have increasingly held that once such relationships have been established, the state may then be required to ensure respect for them through appropriate legislation, regulations, or other means. In these cases, the states are required, in effect, to remove any state-imposed impediments to the enjoyment of the right to family life. In a unique case, the European Court held that a state had a positive obligation to act to respect the right to private life under Article 8. In the case of X. and Y. v. The Netherlands (Application No. 8978/80, Judgement of 26 March 1985) a mentally handicapped girl and her father complained that it was impossible for either of them to institute criminal proceedings against a man who had sexually assaulted her, which constituted a violation of the girl’s right to privacy under Article 8. The Court agreed that the state had a positive obligation to ensure that all individuals have effective means to vindicate their right to privacy, and that therefore there had been a violation of Article 8. In the European system the interrelated themes of state non-interference and positive obligation play an important role in the interpretation of the ‘right to respect’. The case of X. and Y. v. The Netherlands would seem to establish a precedent that the state should act affirmatively.