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Privacy & Data Protection: Class Notes & Summary
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1Privacy and Data Protection
Requirements for the Assignment (25%)
- European legislation
- EU legislation
- International legislation
- Court judgments
Lecture 1: The European Court of Human Rights
- Handbook pages 35-42, 236-245
- Paul de Hert & Gianclaudio Malgieri (nope)
- Paul de Hert & Georgios Bouchagiar
Handbook & judgements - Print out the handbook! Much smarter…
- Knowledge of the judgments and being able to quote them is very important
- Discussions are often decided on the basis of the authority of the Court; not always on
the basis of the GDPR text and other laws
Today’s lecture 1. What is privacy?
2. Why is privacy fun?
3. Legal context of privacy (p. 18-24)
4. Limitations on the right of privacy and the right to personal data protection (p.
35-42)
5. Selfstudy: slides on Breyer
1. What is privacy?
Contextual elements: - Autonomy
values - Individualism → there is a lot against individualism but would you give it up
- Equality → the basis of privacy
- Freedom → in its many definitions (= not a right)
→ Virtues needed for privacy: restraint and discretion
Privacy is the one human right that comes closest to the notion of freedom.
The history of privacy - Etymology: private = being cut off from…
- ‘Modern’ conception of privacy dates back from 1890: Warren and Brandeis
- Ever since: various definitions, emphasis on different aspects, depending on context…
→ 1890: protection of wealthy families against paparazzi - right to be left alone
→ 1950: massification and family planning, autonomy: intimacy (Bloustein)
→ 1970: computers : control over personal information (Westin)
Privacy has been there long before the 20th century and technology!
, 2
Legal history of privacy - First appearance of the concept ‘private life’ (rather than privacy) is in France during
the Revolution (1789) to protect persons against defamations.
→ used by Royer-Collard during the debate about the 1819 press law
- Important: article 17 du chapitre V du titre III de la constitution de 1971
- The concept has been an element of a special offence between 1868 and 1881. Without
any definiton in statutory law, the private life has been used by courts in order to
decide in which cases the exceptio veritatis had to be denied for authors of
defamations
- 1950 Universal Declaration of Human Rights, art. 12
- 1950 European Convention of Human Rights and Fundamental Freedoms, art. 8
- 1969 International Covenant on Civil and Political Rights, art. 17
- 1989 Convention on the Rights of the Child: all over but in part art. 16
- 2000 Charter of Fundamental Rights of the EU, art. 7
Article 17 du chapitre V Nul homme ne peut être recherché ni poursuivi pour raison des écrits qu'il aura fait
du titre III de la imprimer ou publier sur quelque matière que ce soit, si ce n'est qu'il ait provoqué à
constitution de 1971 dessein la désobéissance à la loi, l'avilissement des pouvoirs constitués, la résistance à
leurs actes, ou quelques-unes des actions déclarées crimes ou délits par la loi. - La
censure sur les actes des Pouvoirs constitués est permise ; mais les calomnies volontaires
contre la probité des fonctionnaires publics et la droiture de leurs intentions dans
l'exercice de leurs fonctions, pourront être poursuivies par ceux qui en sont l'objet. - Les
calomnies et injures contre quelques personnes que ce soit relatives aux actions de leur
vie privée, seront punies sur leur poursuite.
2. Why is privacy fun?
Examples of privacy Privacy is…
- ‘leave me alone’
- space for self-development
- space to enter into relationships
- possibility to shape identity
- probably much more
- allowing others space
→ Thesis: things are going quite well today, many of these spaces are recognised
Privacy as a tool to - Due to its liberty nature it is very relevant in today’s society
question power → Why? Prohibition of torture is fortunately less relevant, (though) role taken over by
free speech (US) and privacy (EU)
→ Why? In Europe a very broad range of topics are discussed under the right to
privacy
How does privacy work You demand for every privacy-threatening measure…
as a tool?
1. A detailled legal basis
2. A demonstration of the need for the measure with an eye to less far-reaching
alternatives
→ For example drones, lockdowns, discriminatory practices
How broad is European - The Court applies a broad definition of the notion of private life in Article 8 ECHR,
privacy? extending it far beyond the walls of the private house and the intimate sphere
→ ‘private life’ embraces development of interpersonal relationships, and protects not
only the domestic sphere, but also certain facts occurred in the public sphere
- The Court has even gone so far as to recognise privacy protection to firms and
business activities
- Although the Convention does not evoke modern means of communication, the Court,
applying a ‘dynamic and broad’ interpretation of the Convention, has successively
brought telephone conversations, telephone numbers, computers, video-surveillance,
voice-recording, and Internet and e-mail under the scope of Article 8
, 3
Scope of article 8 ECHR: - Private life and access to records (Odièvre v France 2003)
Examples & judgements → the issue of the balance between a child’s right to know who her or his natural
parents are, and the mother’s right to keep her identity secret
- Private life and video surveillance (Peck v UK 2003)
→ concerned a person who had attempted to commit suicide in a public street,
unaware that he was filmed by CCTV and the police intervened
- Private life and the press (Von Hannover v Germany 2004)
→ Princess Caroline of Monaco was subject to continuous photographic surveillance
from photographers who were selling pictures to German tabloids and magazines
- Private life and discriminatory employment restrictions (also article 14)
(Sidabras and Dziautas v Lithuania 2004)
→ employment restrictions imposed on former employees of the KGB: a statute
prohibiting them from working in the public sector and certain private sector jobs after
the applicants were already employed in these sectors, and later were dismissed
- The consent of the male donor (Evans v UK 2006)
→ The applicant had her ovaries removed and they froze six embryos with the
intention of later implanting them. The relationship broke up and the consent was
withdrawn. The consent of both parties (Human Fertilisation and Embryology Act
1990) is an essential condition so the applicant’s claims were unsuccessful.
- Being registered on at-risk register (D. and Others - United)
→ Two separate cases in which measures were taken by the authorities to protect
young children who were wrongly suspected by doctors to have been victims of abuse.
- Article 2(2) of Protocol 4: Passports and Freedom of Movement
(Napijalo v Croatia 2003)
→ The article provides for the right to leave one’s country & there is no absolute right
to retain a passport. In the case the applicant’s passport was taken for not paying fines
at the border, and the passport was eventually returned.
3. Legal context of privacy (Handbook pages 18-24)
International legal The right to privacy is a long-established fundamental right (art. 12 UDHR)
framework: United
Nations The main legal frameworks:
- 1966 International Covenant on Civil and Political Rights
- 1989 International Convention on Rights of the Chil
→ Personal data protection is not a separate fundamental right
After the Snowden revelations on mass surveillance (2013):
- The UN has adopted two resolutions on privacy issues entitled ‘the right to privacy in
the digital age’
→ Not legally binding, but sparked an international debate around privacy, new
technologies and surveillance
- Establishment of a Special rapporteur on the right to privacy
- Since 2016 the resolutions point to the private sector as well (next to state
responsibility)
Article 12 of the UDHR No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks’
Article 17 International 1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
Covenant on Civil and family, home or correspondence, nor to unlawful attacks on his honour and
Political Rights 1966 reputation
(ICCPR) 2. Everyone has the right to the protection of the law against such interference or
attacks.
, 4
1989 Convention on the Article 16
Rights of the Child 1. No child shall be subjected to arbitrary or unlawful interference with his or her
privacy, family, home or correspondence, nor to unlawful attacks on his or her
honour and reputation
2. The child has the right to the protection of the law against such interference or
attacks.
Article 17
States Parties recognise the important function performed by the mass media and shall
ensure that the child has access to information and material from a diversity of national
and international sources, especially those aimed at the promotion of his or her social,
spiritual and moral well-being and physical and mental health. To this end, States Parties
shall:
(a) Encourage the mass media to disseminate information and material of social and
cultural benefit to the child;
(b) Encourage (...) material from a diversity of cultural, national and international
sources;
(c) Encourage the production and dissemination of children's books;
(d) Encourage the mass media to have particular regard to the linguistic needs of the
child who belongs to a minority group or who is indigenous;
(e) Encourage the development of appropriate guidelines for the protection of the child
from information and material injurious to his or her well-being (…)
Article 6
1. States Parties recognise that every child has the inherent right to life
2. States Parties shall ensure to the maximum extent possible the survival and
development of the child
Article 7
1. The child shall be registered immediately after birth and shall have the right from
birth to a name, the right to acquire a nationality and, as far as possible, the right to
know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this
field, in particular where the child would otherwise be stateless.
Article 8
1. States Parties undertake to respect the right of the child to preserve his or her
identity, including nationality, name and family relations as recognised by law
without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her
identity, States Parties shall provide appropriate assistance and protection, with a
view to re-establishing speedily his or her identity.
ECHR vs ICCPR They both include:
- respect for private and family life (art. )
- freedom to manifest one’s religion to belief (art. )
- freedom of expression (art. )
- freedom of assembly and association (art. -22)
- freedom of movement (art. 2 protocol )
Both have similar approaches to ‘normal limitations of these rights’
In times of public emergency, derogations can temporarily suspend certain human rights
as long as they are strictly required by the exigencies of the situation and consistent with
the states’ other obligations under international law. (art. )
5. Selfstudy: Breyer
For this check the readings & the different tests + case judgments. Can be quite important so keep it in mind!
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