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
Date Written: February 14, 2015
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: Suggested Citation