Navigating the Dataverse: Privacy, Technology ... - The ICHRP

In consequence, it is likely that the European Union’s Data Protection Directive of 1995
(see further below), provides the highest levels of personal data protection for nationals
anywhere in the world concerned about US surveillance. This is because most large
data-gathering companies have assets in Europe, and the European market is too big
to forego – so European law may apply to the data-gathering activities of US companies
undertaken anywhere in the world. 147
Most large data-gathering companies have assets in Europe, and the
European market is too big to forego – so European law may apply to the
data-gathering activities of US companies undertaken anywhere in the world.
Europe: “Home, Private and Family Life” and Data Protection
The right to privacy has had an active life in the European Court of Human Rights
in Strasbourg. In a celebrated case, S. and Marper v. United Kingdom, the Court
declared that “the concept of ‘private life’ is a broad term not susceptible to exhaustive
definition”. 148 It went on to list the various categories covered by Article 8 in its case law
to date: “physical 149 and psychological integrity of a person”, 150 “multiple aspects of the
person’s physical and social identity”, 151 “gender identification, sexual orientation and
sexual life”, 152 choice of married name, 153 health, 154 ethnic identity, 155 “a right to personal
development, and the right to establish and develop relationships with other human
beings and the outside world”, 156 and “a person’s right to their image”. 157
We will return to S. and Marper presently. The above list, it is worth pointing out, though
lengthy, is not exhaustive. It might also have mentioned freedom from pollution, for
example, among other protections of the “home and family life”. 158
The very broad scope of Article 8 is no doubt attributable to an entrenched tradition
viewing privacy to be the basis of civic freedom in a modern liberal state as outlined in
Chapter 1. This explains the recurrence of principles of identity and the broad spectrum of
“decisional privacy” issues within the scope of Article 8. However, the Court’s somewhat
self-congratulatory tone should not be taken to indicate that the relevance of the “right
to privacy” to so many of its cases necessarily indicates its primacy. This is so even with
respect to “decisional privacy”, which might be described as a person’s right to be the
principal decision-maker in matters of core importance for his or her self. For example,
the Court has affirmed that the legal status of transsexuals is an Article 8 privacy issue,
147 Goldsmith and Wu (2006), 173–177.
148 S. and Marper v. United Kingdom, nos. 30562/04 and 30566/04, judgment of 4 December 2008, para.
66.
149 Y.F. v. Turkey, no. 24209/94 22 July 2003 [forced gynaecological examination by security forces on
female detainee lacked a legal basis, violating Article 8].
150 Pretty v. the United Kingdom, no. 2346/02 29 April 2002 [ban on assisted suicide, the refusal of prosecutor
to agree not to pursue was not a violation of Article 8].
151 Mikuli v. Croatia, no. 53176/99 7 February 2002 [lengthy proceedings on paternity decision, a violation of
Article 8].
152 Bensaid v. the United Kingdom, no. 44599/98; Peck v. the United Kingdom, no. 44647/98.
153 Burghartz v. Switzerland, no. 16213/90, judgement of 22 February 1994 [refusal to allow change of
surname to include wife’s surname violates Article 8]; Ünal Tekeli v. Turkey, no. 29865/96 16 November
2004 [refusal to allow married woman to use maiden name violates Article 8].
154 Z. v. Finland, judgment of 25 February 1997.
155 The Court here cites Article 6 of the EU Data Protection Convention.
156 Friedl v. Austria, judgment of 31 January 1995.
157 Sciacca v. Italy, no. 50774/99.
158 López Ostra v. Spain, no. 16798/90, judgment of December 9, 1994 [failure to regulate toxic waste in
locality a violation of Article 8].
50 Navigating the Dataverse: Privacy, Technology, Human Rights