Data Protection and Privacy: European and US Perspectives — Balancing the rights of privacy and the freedom of expression (Part III)

Identifying the scope of privacy in reference to the grounds on which it can be restricted.

Art 8: Privacy analysis of the European Court of Human Rights

The concept of privacy is ‘multifaceted, subjective, and evolving’. [34] Privacy is a post-twentieth century phenomenon brought on by social and technological developments, therefore involving almost every human being, whether they realise it or not. In The United States and Europe, the law has, within the last ten years, intensified measures enabling authorities to gain access to data ‘at the expense of privacy.’ [35] Therefore, the deliberation over the appropriate balance between freedom of expression and privacy rights has been at the forefront of debate at a continuum. Such deliberations often intend to justify the intrusion of privacy in terms of the protection of ‘public safety’ which ‘necessitates the narrowing of privacy protections’. [36]

Privacy has become a worldwide debacle thanks to, inter alia, Edward Snowden’s exposé in 2013 of the US National Security Agency’s particular activities, therefore becoming a global data protection issue on the ‘international agenda’. [37] A fear has been realised amidst society as certain technological measures constructed to restrain terrorism and other crime, have perhaps been used to surveil society, in an effort to gain ‘total social control’. [38] The following will identify the grounds in which privacy may be restricted, garnering the European Court of Human Rights’ reasoning in national laws, regulations and practices that have permitted surveillance domestically.

Article 8 of the European Convention of Human Rights makes provision for the right of an individual’s ‘private and family life’ subject to restrictions that ‘in accordance with the law’ are ‘necessary in a democratic society’. [39] Art 8 will only be applicable however if legislation or ‘secret’ measures in place cause interference with an individual’s privacy rights. This interference was acknowledged in Klass v Germany, ‘this menace of surveillance can be claimed in itself to restrict free communication …thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8’. [40] Consequently in Malone v the UK, Strasbourg advocated that the interception of phone calls warranted violation of the plaintiff’s rights, as Judge Pettiti ruled; ‘[t]he comprehensive metering of telephone communications (origin, destination, duration), when effected for a purpose other than its sole accounting purpose, albeit in the absence of any interception as such, constitutes an interference in private life’. [41] This position was broadened in Liberty v the UK to ‘general programs of surveillance’. [42]

Reference may also be made to Article 17(1) of the International Covenant on Civil and Political Rights, which underpins that ‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’ [43] This provision however is outweighed in clarity to ‘interference’ by that of Art 8 of the ECHR. Art 17 could also encompass a broader scope according to Volio, in which protection would extend to any means of receiving and maintaining data privately. [44] Volio illustrates the right of privacy as a ‘zoé of isolation, a legal cloister for those qualities… and lifestyles which each individual man, woman or child wishes to enjoy or experience’. [45]

Accessibility, in terms of privacy aims to offer clarification by way of ‘the publication of the primary and secondary legislation regulating surveillance’. [46] Accessibility also provides exceptions to Art 8(1) ECHR in which ‘cannot be secret but have to be made accessible to citizens.’ [47] Interestingly, in Weber and Saravia v Germany, [48] the Strasbourg court ruled against concerns that publicising surveillance activities would jeopardize competent operations.

Comparatively in Liberty, such interference with surveillance operations was also argued against by the British Government. [49] In Weber, the court found that access to surveillance did not have any detrimental effect to its efficiency, as the court found that the applicants ‘failed to provide proof in the form of concordant inferences that the German authorities, by enacting and applying strategic monitoring measures, have acted in a manner which interfered with the territorial sovereignty of foreign States as protected in public international law.’ [50] The court also clarified that such accessibility of surveillance activities is not explicit of full disclosure, merely suggesting ‘that it is possible for a State to make public certain details about the operation of a scheme of external surveillance without compromising national security,’ at a maintained level. [51]

In Marper; S v UK, the ECHR ruled that the right to privacy stipulated in Art 8 had been violated following the holding of DNA samples of arrested individuals consequently acquitted. [52] The court recognised the significance of such personal data in uncovering crime, however also acknowledged that the scope of such examination must be limited. The court stated that ‘[t]he question is not whether the retention of fingerprints, cellular samples and DNA profiles may in general be regarded as justified under the Convention. The only issue to be considered by the Court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under Article 8(2) of the Convention.’ [53]

34 Zhendong Ma and others, ‘Towards a Multidisciplinary Framework to Include Privacy in the Design of Video Surveillance Systems’ in Privacy Technologies and Policy, Springer 2014, 103.

35 Joel R. Reidenberg, ‘The Data Surveillance State in the United States and Europe’ (2013) Wake Forest Law Review, p. 2

36 Id.

37 Stephanie Schiedermair, ‘Data Protection — Is There a Bridge across the Atlantic?’ in Dieter Dörr and Russell L. Weaver (eds), The Right to Privacy in the Light of Media Convergence Perspectives from Three Continents (De Gruyter 2012) 17

38 Elisabeth Fura and Mark Klamberg, ‘The Chilling Effect of Counter-Terrorism Measures: A Comparative Analysis of Electronic Surveillance Laws in Europe and the USA’ in Freedom of Expression: Essays in honour of Nicolas Bratza, President of the European Court of Human Rights 2012, 463

39 Art 8, ECHR

40 (1979–80) 2 EHRR 214. at 37

41 (1985) 7 EHRR 14

42 Reference Application No 58243/00. at 63.

43 Art 17(1) ICCPR

44 Volio, F ‘Legal personality, privacy and the family’ in Louis Henkin (ed.,) The International Bill of Rights (New York: Columbia University Press, 1983) 185

45 Id. 185, at 190

46 Cf. Marco Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2014) HILJ; http://ssrn.com/abstract=2418485> 68

47 Antonella Galetta and Paul De Hert, ‘Complementing the Surveillance Law Principles of the ECtHR with its Environmental Law Principles: An Integrated Technology Approach to a Human Rights Framework for Surveillance’ (2012) 10 Utrecht Law Review 64. Also depicted in Council of Europe, Case law of the European Court of Human Rights concerning the protection of personal data, 2009, DP (2009).

48 (2008) 46 EHRR 5.

49 Liberty Ors v UK. Reference Application No 58243/00. at 67: ‘The fact that the Commissioner in his annual reports concluded that the Secretary of State’s “arrangements” had been complied with …while an important safeguard against abuse of power, did not contribute towards the accessibility and clarity of the scheme, since he was not able to reveal what the “arrangements” were. In this connection the Court recalls its above case-law to the effect that the procedures to be followed for examining, using and storing intercepted material, inter alia, should be set out in a form which is open to public scrutiny and knowledge.’

50 (2008) 46 EHRR 5. at 50.

51 Liberty Ors v United Kingdom, at 68.

52 [2008] ECHR 1581.

53 Id. at 106.