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

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

Margin of appreciation

The observation was made in Canepa v Canada, that ‘article 17 is not confined to procedural arbitrariness, but extends to the reasonableness of the interference with the person’s rights …[t]he separation of a person from his family by means of his expulsion could be regarded as an arbitrary interference with the family and as a violation of article 17 if, …its effects on him were disproportionate.’ [54] This underlines that an element of proportionality may be sought by courts when assessing privacy interferences, even though proportionality is not expressly mentioned in Art 8(2) ECHR. [55]

Therefore the implementation of surveillance measures to protect against crime, must be balanced with provisions of the privacy rights of a citizen. This preservation of citizen’s rights follows on to that of foreign surveillance and privacy rights of those accused of terrorism. This is a very relevant issue regarding worldwide hostility of Muslims subsequent to ISIS’ terrorist attacks, illustrated following the Paris attacks. In light of such scenario, the courts have concocted a margin of appreciation for authorities implementing security measures.

A wide margin of appreciation is afforded in ensuring Member States strike an appropriate balance between ‘competing public and private interests or convention rights’. [56] Such guidelines allow for the margin of appreciation to be applied ‘like a squeeze-box device to which the proportionality principle adapts accordingly’ within reference to Art 8 ECHR. [57] In Marper, the court stated that ‘A margin of appreciation must be left to the competent national authorities in this assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights.’ [58]

Similarly in Leander v Sweden, the court illustrated that the margin of appreciations scope widens and narrows based on ‘the particular nature of the interference involved’. [59] The latter point recognising the particular grounds on which privacy may be restricted.

54 Comm. №558/1993, § 11.4, U.N. Doc. CCPR/C/59/D/558/1993. at 11.4.

55 Art 8(2) ECHR states ‘There shall be no interference by a public authority with … freedoms of others’.

56 T. Murphy G. Ó Cuinn, ‘Work in progress. New technologies and the European Court of Human Rights’, 2010 Human Rights Law Review, pp. 633–635.

57 Antonella Galetta and Paul De Hert (2012) p.71

58 S; Marper at 102.

59 (1987) 9 EHRR 433. at 59