The Uncertain Landscape of Article 8 of the ECHR: The Protection of Reputation as a Fundamental Human Right?

Published in A. Kenyon, Comparative Defamation and Privacy Law (CUP, 2016), ch 13

21 Pages Posted: 14 Oct 2015 Last revised: 18 Apr 2017

See all articles by Tanya Aplin

Tanya Aplin

King's College London

Jason John Bosland

University of Melbourne; University of Melbourne - Centre for Media and Communications Law

Date Written: February 14, 2015

Abstract

Strasbourg’s jurisprudence concerning when harm to reputation engages the Article 8 right to private life has been inconsistent and confusing. The Court has veered between accepting reputation as directly and automatically protected by Article 8 to requiring that a ‘seriousness’ threshold be met before Article 8 is engaged. Despite the Grand Chamber’s ruling in Springer, recent case law has continued to demonstrate this ambivalence. This is problematic, not least because it makes it difficult to predict when matters of reputation engage Article 8, such that a balancing methodology between competing rights is required. This paper seeks to untangle the Strasbourg jurisprudence and articulate the proper relationship, both doctrinally and conceptually, between reputation and private life in Article 8. It is argued that the preferable interpretation of the relationship between reputation and Article 8 is that reputation does not form part of private life but that harm to reputation can impact on private life in certain situations. Furthermore, we argue that the ‘seriousness’ threshold adopted in Springer and Karakó operates as a proxy for assessing such impact. The current test, however, does not seek to identify or explain when or why harm to reputation results in harm to private life. Thus, we argue that the dignity and sociality theories for the protection of reputation have a crucial role to play in the court’s analysis and should be incorporated to form the central focus of the seriousness threshold test.

Keywords: Reputation, Article 8 ECHR, freedom of expression

JEL Classification: K10

Suggested Citation

Aplin, Tanya F. and Bosland, Jason John, The Uncertain Landscape of Article 8 of the ECHR: The Protection of Reputation as a Fundamental Human Right? (February 14, 2015). Published in A. Kenyon, Comparative Defamation and Privacy Law (CUP, 2016), ch 13. Available at SSRN: https://ssrn.com/abstract=2674113 or http://dx.doi.org/10.2139/ssrn.2674113

Tanya F. Aplin (Contact Author)

King's College London ( email )

Dickson Poon School of Law
The Strand
London, WC2R 2LS
United Kingdom
+44 (0)20 7848 1049 (Phone)

HOME PAGE: http://www.kcl.ac.uk/law/people/academic/taplin.aspx

Jason John Bosland

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

University of Melbourne - Centre for Media and Communications Law ( email )

Victoria 3010
Australia

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