3.-The-standard-of-privacy-protection1

Summer Semester 2010 University of Warsaw Faculty of Law and Administration European Constitutionalism Seminar Topic The Standard of Privacy Protection Patrick Tschech Marija Zrno A Introductory remarks on privacy B Provisions of privacy protection in European Constitutional Law C Comparative perspective: The right to self-seclusion as a part of the right to privacy a The European Convention on Human Rights II.Objective scope of protection VII.Subjective scope of protection 11 h The German Basic Law 11 1.Universal personal right .12 IX.Privacy of correspondence, posts and telecommunications .14 X.Inviolability of the home .14 k The Charter of Fundamental Rights of the European Union 14 l The Polish Constitution 15 m Comparative conclusions regarding the scope of protection 15 D Restrictions on the right to privacy - surveillance .17 I The European Convention on Human Rights 17 b The Charter of Fundamental Rights 19 c The Polish Constitution 20 d Margin of appreciation 21 E Conclusion 22 F Sources 23 -2- A Introductory remarks on privacy The need for a protection of private sphere has become most strikingly evident in the course of the twentieth century Technical and social developments have led to new needs of protection The invention of photography and the arising mass media led to inconveniences not only but especially for famous persons One of the early cases connected with paparazzi is the death of the Chancellor of the German Reich Otto von Bismarck Two photographers took a photo of the dead Bismarck and could earn lots of money with it But the son of Bismarck was granted a court order that prohibited the publication Answer to these new threats was the invention of a right to privacy One of the most influential contributions to its development was an article published in 1890 by a well-known Boston lawyer, Warren, in conjunction with Brandeis.2 They proposed that the positive law contained a general principle that, “which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds” Later new threats arose mainly with the development of information technology that allowed much faster organization availability of data and information As a reaction laws on data protection were enacted, starting with the law of a German “Land”, the Hesse Data Protection Act of 30 September 1970 All these new challenges were also recognized by constitutional and fundamental rights law Scope of this paper is to analyze the standard of privacy protection in Europe comparing different national and international systems with focus on the justification of restrictions B Provisions of privacy protection in European Constitutional Law We have seen that the right to privacy followed a need in modern societies that arose mainly from the invention of new technologies Its concrete forms have been rather developed by judicial law than by legislature Due to this the right to privacy is not shaped precisely and can therefore not be sharply defined To find out what the underlying principles and protected areas of privacy are, we will take the way backwards We will analyze provisions of European constitutions and in European human rights documents with special regard to provisions that protect the private sphere of a person Seifert, Postmortaler Schutz des Persönlichkeitsrechts und Schadensersatz – Zugleich ein Streifzug durch die Geschichte des allgemeinen Persönlichkeitsrechts, NJW 1999, 1989 Warren/Brandeis, The Right to Privacy, Harvard Law Review 193 (1890) Burkert, Privacy – Data Protection, A German/European Perspective, in: Engel/Kenneth: Governance of Global Networks in the Light of Differing Local Values, p 44 ECHR Niemetz v Germany (1992) 16 EHRR 97 para 29; Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article para -3- A right to privacy or private life is recognized in nearly all constitutions of Europe as well as in the European Convention of Human Rights and the Charter of Fundamental Rights of the European Union The European Convention on Human Rights protects in article the respect for private and family life as well as for home and correspondence Especially mentioned is a right to private- and family life or privacy in article 22 of the constitution of Belgium, §10 section of the constitution of Finland, article paragraph of the constitution of Greece, article sentence of the constitution of Lithuania, article 10 paragraph of the constitution of the Netherlands, article 47 of the constitution of Poland, article 26 paragraph of the constitution of Portugal, article 19 paragraph of the constitution of Slovakia and article 18 paragraph of the constitution of Spain Some constitutions protect families and include therefore the protection of family life So for example article paragraph of the German Basic Law, article 41 paragraph number of the constitution of Ireland, article 29 sentence of the constitution of Italy and article 11 sentence of the constitution of Luxemburg Many national constitutions contain further more provisions concerning the protection of home as well as the secrecy of correspondence: article 15 und 29 of the constitution of Belgium, § 72 of the constitution of Denmark, § 10 section and of the constitution of Finland, article 10 paragraph and article 13 paragraph of the German Basic Law, article paragraph sentence and and article 19 of the constitution of Greece, article 40 paragraph of the constitution of Ireland, article 14 and 15 of the constitution of Italy, article 15 and 28 of the constitution of Luxemburg, article 12 and 13 of the constitution of the Netherlands, article paragraph 1, articles 10 and 10a paragraph of the Austrian State Basic Law, article 34 of the constitution of Portugal and article 18 paragraph and of the constitution of Spain.5 Some Constitutions recognize further more a fundamental right of protection of personal data So does § 10 section sentence of the constitution of Finland, article 59 of the constitution of Hungary, article 10 of the constitution of the Netherlands, article 51 of the constitution of Poland, article 35 of the constitution of Portugal, article 19 paragraph und article 22 of the constitution of Slovakia, article 38 of the constitution of Slovenia, article 18 paragraph constitution of Spain, chapter § sentence and § 22 number of the constitution of Sweden.6 The Charter of Fundamental Rights of the European Union establishes in article similar to article of the European Convention on Human Rights a right to respect for private and See Bernsdorff, in: Mayer, Kommentar Grundrechtecharte (commentary charter of fundamental rights), article para See Bernsdorff, in: Mayer, Kommentar Grundrechtecharte (commentary charter of fundamental rights), article para -4- family life as well as for home and communication It recognizes furthermore in article paragraph a right to protection of personal data The right to privacy in European fundamental rights law consists with regard to the provisions adopted therefore of the following aspects: private life, family life, home, correspondence and data protection The most general and most difficult one to define of these guarantees is the right to protection of private life While the others cover more specific parts of the right to privacy, private life is a very broad term And we need the interpretation of courts to know exactly what is covered by it The European Court of Human rights considers that there is no exhaustive definition of private life.8 But he recognizes different case groups to be part of private life We will now have a look at what should be part of this most general provision to protect privacy according to the courts and will then try to put these cases and the other areas protected into categories The European Court of Human rights considers it too restrictive to limit private life to an “inner circle in which an individual can choose to live his personal life as he chooses” But also recognizes a social aspect of private life: To “establish and develop relationships with other human beings” It is therefore a right to identity and personal development 10 The Court recognized as an infringement an arbitrary interference with physical and psychological integrity of a person.11 Part of private life are furthermore aspects of an individual’s physical and social identity12, it’s name13, it’s picture14, it’s individual and social identity 15, the reputation of a person16, the right to ones gender17, sexual orientation and sexual life18, the Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), GRCh article para ECHR Niemietz v Germany, judgment of 16 December 1992, Series A no 251 B, p 33, para 29 ECHR X v Iceland, (1976) DR 86, EComm HR 10 ECHR Odièvre/France, judgement of 13february 2003, 42326/98 para 29 11 X and Y v the Netherlands, judgment of 26 March 1985, Series A no 91, p 11, para 22; (Glass v the United Kingdom, no 61827/00, para 70-72, ECHR 2004 II; Y.F v Turkey, no 24209/94, para 33, ECHR 2003-IX; Matter v Slovakia, no 31534/96, para 64, July 1999; Worwa v Poland, no 26624/95, para 80, ECHR 2003 XI (extracts); Bensaid v the United Kingdom, no 44599/98, § 47, ECHR 2001 I 12 ECHR Mikulić v Croatia, no 53176/99, para 53, ECHR 2002 Il; Odièvre v France [GC], no 42326/98, para 29, ECHR 2003 III 13 ECHR Mentzen v Latvia no 71074/01, ECHR 2004-XII at pp 42-43; Burghartz v Switzerland, judgment of 22 February 1994, Series A no 280 B, p 28, para 24; Guillot v France judgment of 24 October 1996, Reports of Judgments and Decisions 1996 V, pp 1602-3, para 21-22 14 ECHR Schüssel v Austria, no 42409/98, 21 February 2002; Von Hannover v Germany, no 59320/00, para 50-53, ECHR 2004 VI 15 Mikulić v Croatia, no 53176/99, § 53, ECHR 2002 Il; Odièvre v France [GC], no 42326/98, § 29, ECHR 2003 III 16 ECHR Fayed v the United Kingdom, judgment of 21 September 1994, Series A no 294 B, pp 50-51 , para 67; Chauvy and Others v France, no 64915/01, para 70, ECHR 2004 VI; Gunnarsson v Iceland (dec.), no 4591/04, 20 October 2005 17 ECHR B v France, judgment of 25 March 1992, Series A no 232 C, p 47-54, para 43-63; Christine Goodwin v the United Kingdom [GC], no 28957/95, para 77, ECHR 2002 VI 18 ECHR Dudgeon v the United Kingdom, judgment of 22 October 1981, Series A no 45, p 18-19, para 41; Laskey, Jaggard and Brown v the United Kingdom, judgment of 19 February 1997, Reports of Judgments and -5- right to self-determination and personal autonomy (at least with regard to the end of one’s life)19, activities of a professional of business nature 20, the right to data protection21, information to risk’s to one’s health 22, searches and seizures23 and surveillance of communications and telephone conversations24 It is important to mention that all those areas protected are not mutually exclusive and a measure can interfere with more of them.25 So what underlying principles have all those protected areas in common? We can divide these different guarantees of privacy protection into three categories according to their purpose of protection The first category is the very basic aspect of the right to privacy: The right to be left alone, as Warren and Brandeis called it 26, or the right to self-seclusion27 It is the right of an individual to seclude itself from the environment The protection of home and correspondence, as well as the protection of personal data therefore fit into this category It especially protects an individual from investigation of his private life and life in general by the state.28 Searches and seizures and surveillance are important infringements This is the “inner circle” protected by the right to privacy, as the European Court of Human Rights puts it But we have seen that jurisdiction does not stop here It further more protects the right of a person to make decisions about his own life, his gender, his sexual orientation and sexual life etc as part of privacy This is the right to self-determination or personal autonomy.29 Finally the right to privacy also includes a right to decide about how a person wants to be seen by others and especially by the public The third category therefore protects the right to selfDecisions 1997 I, p 131, para 36; A.D.T v the United Kingdom, no 35765/97, para 21-26, ECHR 2000 IX 19 ECHR Pretty v the United Kingdom, no 2346/02, para 61 and 67, ECHR 2002 III 20 ECHR Niemietz v Germany, judgment of 16 December 1992, Series A no 251 B, p 33, para 29; Halford v the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997 III, p 1016, para 44 21 ECHR Rotaru v Romania [GC], no 28341/95, para 43-44, ECHR 2000 V; Amann v Switzerland [GC], no 27798/95, para 65-67, ECHR 2000 II; Leander v Sweden, judgment of 26 March 1987, Series A no 116, p 22, para 48; X v the United Kingdom, no 9702/82, Commission decision of October 1982, Decisions and Reports (DR) 30, p 239, 240 22 ECHR McGinley and Egan v the United Kingdom, judgment of June 1998, Reports of Judgments and Decisions 1998 III, p 1362, para 97; Guerra and Others v Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998 I, p 228, para 60 23 ECHR McLeod v the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998 VII, p 2787, para 36; Funke v France, judgment of 25 February 1993, Series A no 256 A, p 17, para 48 24 ECHR Weber and Saravia v Germany (dec.), no 54934/00, para 76-79, 29 June 2006 25 ECHR Menteş and Others v Turkey, judgment of 28 November 1997, Reports of Judgments and Decisions 1997 VIII, p 2711, para 73; Stjerna v Finland, judgment of 25 November 1994, Series A no 299 B, p 60, para 37; López Ostra v Spain, judgment of December 1994, Series A no 303 C, p 54, para 51; Burghartz v Switzerland, judgment of 22 February 1994, Series A no 280 B, p 53, para 24; Płoski v Poland, no 26761/95, para 32, 12 November 2002 26 Warren/Brandeis, The Right to Privacy, Harvard Law Review 193 (1890) 27 Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), article para 28 DiFabio, in: Maunz/Dürig, Kommentar GG, article para 156 29 Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), article para -6- manifestation.30 It provides protection against being publicly presented in a degrading, false or unwanted way This category covers also the right to one’s name and picture and protection against defamation It protects the honor of a person We have found three underlying principles of the right to privacy: self-seclusion, selfdetermination and self-manifestation.31 A clear separation of the mentioned case groups into these categories is nevertheless not possible Some areas might be protected because they relate to more than one of the before mentioned categories The right to data protection for example protects the individual against investigations and therefore relates to self-seclusion But at the same time it also serves the right to self-manifestation, as it guarantees a person to disclose information on his own choice.32 The categories are also connected with each other Self-manifestation, in the meaning that a person can decide about what information about herself should be shared with others, is also a way of self-determination At the same time it serves the purpose of self-seclusion by protecting the private sphere It is obvious that all three parts entail and complement each other Hence the division of privacy into these three groups cannot provide a sufficient or even closed definition of what is the right to privacy, if such a definition is possible at all Nevertheless it is very useful for our purposes here These three categories of protected rights are linked with certain infringements The right of self-determination can be infringed by the state forbidding certain behaviors or decisions related to the personal sphere, for example certain sexual practices.33 The right to self-manifestation can be infringed by publishing right or wrong aspects of a person without her consent The right to self seclusion will be most often infringed by the state while trying to gather information for criminal proceedings or warding off danger Hence in the following we will limit ourselves to the aspect of selfseclusion It covers all infringements made for security reasons and is the aspect which is interesting with regard to the topic of the seminar We will exclude self-manifestation and self-determination and also family life C Comparative perspective: The right to self-seclusion as a part of the right to privacy We will now compare the right to self-seclusion in the European Convention on Human Rights of November 1950, the German Basic Law of 23 May 1949, the Charter of 30 Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), article para See also Schmidt, in: Erfurter Kommentar zum Arbeitsrecht (commentary on labour law), GG article para 38 et sequ 32 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary Basic Law), article para 172 33 See ECHR Dudgeon v the United Kingdom, judgment of 22 October 1981, Series A no 45, p 18-19, para 41 31 -7- Fundamental Rights of the European Union of December 2007 and the Constitution of the Republic of Poland of April 1997 In these four systems we first want to compare the scope of protection provided and what impact on the interpretation different formulations and different conceptions of rights have a The European Convention on Human Rights We have already seen that the European Convention on Human Rights protects in article for everyone the right to respect for private life, home and correspondence We will now analyze more detailed what is the scope and content of the protection of these rights II Objective scope of protection III Respect Article is formulated in a very uncommon way for the European Convention on Human Rights It gives a right to respect a sphere of privacy It can nevertheless be clearly seen from the context of paragraph that there should be no infringement if not the exceptions stated there are fulfilled.34 But apart from this clear negative obligation, respect means further that there are positive obligations for the member-states to protect privacy in a sufficient way in the areas of legislation, jurisdiction and administration 35 The member-states are obliged to provide the possibility for individuals to defend themselves against infringements in a fair trial before a court.36 There must be furthermore adequate procedural guarantees to render an effective protection possible The member states have to enact criminal law that protects privacy and they have to make sure that it is enforced in an effective way Finally there is also an obligation to enforce the respect for privacy in horizontal relations between private persons.37 The extent of these positive obligations depends on whether the individual is able to protect itself and whether it suffers directly from the inaction of the state 38 The fact that the term “respect” was chosen and that the right was not simply guaranteed shows that a certain margin of appreciation was wanted to be left open for the member states 39 This has its reasons in the peculiarity of these rights connected with privacy The formulation admits a more distinctive adaption to national characteristics in this area.40 34 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article para Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 16 36 ECHR X and Y v the Netherlands, judgment of 26 March 1985 37 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article para 2c; The law under the European Convention, para 12.113 38 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 16 The law under the European Convention, para 12.111 39 ECHR Keegan v Ireland, judgment of 26 May 1994 40 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 16; Law under European Convention, para 12.107 35 -8- IV Private life We have also seen that private life is the widest of the protected rights in article 8, while home and correspondence are more specific implementations of the right to privacy 41 First we will discuss some general principles of private life Then we will turn to those cases of selfseclusion and analyze them more detailed The European Convention does not contain a general freedom of action, like for example the German Basic Law in article paragraph or the Polish Constitution in article 31.1 But Article of the Convention could be regarded as a supplemental right that applies to all areas of life that are not protected by special guarantees Especially the Court’s jurisdiction that the right to private life protects personal autonomy and self-determination as it is stated in the case Pretty v the United Kingdom gives reason for such an assumption 42 Nevertheless such a general freedom of action has never been explicitly derived from article by the Court 43 It rather protects not all human activities, but just such activities that are carried out within the private sphere – a sphere that comprises all areas of life that don’t concern others But this sphere is understood in a very broad sense by the court In any case activities with a distinct reference to the public sphere are not included in the protection of private life.44 Now we will focus on the following aspects that will be especially interesting with the second part of our paper: searches and seizures, surveillance of communications and telephone conversations and data protection The Court declares searches and seizures in a person’s home a clear interference with private life.45 But also searches in business premises were declared as an infringement, as in Niemietz v Germany searches in a lawyer’s office The court held that there was no reason to exclude professional activities as in this part of life the individual has “significant […] opportunity of developing relationships with the outside world” Furthermore the court argued that it was not easy to distinguish between those activities that are professional and those which are not The Court recognizes as well telephone tapping and other forms of surveillance of communications and areas of private space as an infringement of private life 46 It is not 41 See Papier, in: Mauz/Dürig, Kommentar GG (commentary basic law), article 13 para 1; Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), article para 3; Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 14 42 Uerpmann, in: Ehlers, Grundrechte (fundamental rights), section para 43 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 15; see below… 44 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 19 45 ECHR McLeod v the United Kingdom, judgement of 23 September 1998, para36 46 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 10 -9- important whether the surveillance is carried out by a private person, if it was made with the knowledge and consent of public authorities 47 Furthermore the mere existence of legal provisions, allowing surveillance, constitutes interference, as “this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services” 48 Measures of surveillance on police premises, in a prison cell or in visiting area of a prison are interferences, especially if they are carried out secretly 49 The prisoners can expect a certain sphere of privacy in their cells and in a room serving the purpose of communication with visitors.50 Concerning secret surveillance in public areas the court established the criteria whether the surveillance is foreseeable or not It distinguished between surveillance for security reasons and for other not foreseeable purposes.51 But private life is affected if systematic recordings of public areas are made and stored in databases Hence surveillance of public places and of demonstrations using cameras is no infringement of private life if it is made for security purposes.52 But storing recordings, for example to identify suspects, amounts to an interference with private life.53 Protection of personal data, especially of medical and social data, is as well an essential part of the protection of private life and is of fundamental importance to a person’s enjoyment of her right to respect for privacy 54 Infringements are for example personal information collated by an official census, fingerprinting and photography by the police, a compulsory medical examination and the maintenance of medical records 55 In general it can be any collection of data about the private sphere But also storing and the further processing of personal data is an own interference with the right to privacy 56 But the mere obligation to carry an identity card and to show it on request was not recognized as an infringement.57 V Home 47 ECHR A v France, judgement of 23 November 1993, Series A no 277-B, para 36; M.M v Netherlands, judgement of 24 September 2003, para 38 et sequ 48 ECHR Klass and others v Germany, judgment of September 1978, para 41 49 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article para 3b 50 ECHR Wisse v France, judgment of 20 March 2006, para 30 51 ECHR Wisse v France, judgment of 20 March 2006, para 26 52 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article para 3a 53 ECHR Perry v the United Kingdom, judgment of 17 July 2003, para 38 54 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article para 11; Law under the European convention, para 12.88 55 Clayton/Tomlinson, The law of human rights, para 12.89 56 ECHR Z v Finland, judgment of 25 February 1997, para 70, Leander v Sweden, judgment of 26 March 1987, para 48; Weber and Saravia v Germany, judgment of 29 June 2006, para 79; Amann v Switzerland, judgment of 16 February 2000, para 70; Rotaru v Romania, judgment of May 2000, para 46 57 Filip Reyntjens v Belgium (1992) 73 DR 136 - 10 - The scope of home has to be defined autonomous and doesn’t rely on definitions in national law Whether something can be qualified as home depends on the factual circumstances There has to be a sufficient and continuous link to a specific place, but it is not required that the place was occupied or rented out for a certain time 58 It has to be taken into consideration that the word “domicile” in the French version is broader than the English word “home”.59 Covered are owner-occupied and rented flat as well as business premises (see private life) including branches60 It also covers uncommon residences like caravans.61 Houses belonging to others can be protected if they are occupied for significant periods and regularly 62 Cells of prisoners are not included.63 Infringements are searches and surveillance, including telephone conversations at home VI Correspondence Correspondence covers according to the court not only letters but all forms of private communications The confidentiality of telephone conversations64, pager messages65, emails66, private radio67 and other forms of communication are protected The content of correspondence is irrelevant It does not have to be personal in nature 68 And there is no de minimis principle for interference69 Thus opening a letter is enough for constituting an interference VII Subjective scope of protection According to article everyone has the right to privacy Whether companies can be subject to this right is arguable.70 h The German Basic Law 58 ECHR Mentes and Others v Turkey, judgment of 28 November 1997, para 73; Klass and Others v Germany, judgment of September 1978, para 41; López Ostra v Spain, judgment of December 1994, para 51; Maragreta and Roger Andersson v Sweden, judgment of 25 February 1992, para 72; Buckley v United Kingdom, judgment of 25 September 1996, para 52-54; Prokovich v Russia, judgment of 18 November 2004, para 36; Buck v Germany, judgment of 28 April 2005, para 31 59 Sallinen and Others v Finland, judgment of 27 September 2005, para 70 60 ECHR Société Colas Est and Others v France, judgment of 16 April 2002, para 41 61 ECHR Buckley v the United Kingdom, judgment of 25 September 1996, para 34 62 ECHR Mentes and Others v Turkey, judgment of 28 November 1997, para 73 63 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article para 34 64 ECHR Klaas and Others v Germany, judgment of September 19878, para 41 65 ECHR Taylor v the United Kingdom, judgment of 22 October 2002 66 ECHR Copland v the United Kingdom, judgment of July 2007, para 42 67 ECHR X and Y v Belgium, Comission decision of 13 May 1982 68 ECHR A v France, judgment of 25 June 1997, para 35 and 37; The law under the European Convention, para 12.104 69 ECHR Narinen v Finland, judgment of June 2004, para 32 70 Clayton/Tomlinson, The Law of Human Rights, para 12.83 - 11 - The German Basic law originally nowhere recognizes a right to privacy Article paragraph guarantees the right to free development of one’s personality But even though by its wording it seems to be connected with a personal right to privacy, the Federal Constitutional Court starting with the Elfes-judgment developed it as a general freedom of action 71 The Basic law just contains in article 10 paragraph the privacy of correspondence, posts and telecommunications and in article 13 paragraph the inviolability of the home Nevertheless legal doctrine and jurisdiction have developed a universal right to personality Universal personal right The universal personal right is a “fundamental right within a fundamental right” It is according to the jurisdiction of the Federal Constitutional Court situated in article paragraph in connection with article paragraph 1, which protects human dignity It was first developed by the Federal Court of justice for civil law relations 72 with regard to article and of the Basic Law The Federal Constitutional Court first partly recognizes an additional personal right in article 73 and then developed a universal personal right The universal personal right has a supporting character and protects those areas that are not protected by a specific guarantee of personal rights It is especially important where due to technical innovations new dangers to human personality arise.74 The universal personal right is often said to be a new unnamed fundamental right that is independent of the general freedom of action in article paragraph 1.75 But in fact both are very closely connected Active and passive protection of personality are linked and require each other 76 For the general personal right article paragraph is always cited together with article paragraph to show the close connection of this right with human dignity But an infringement not automatically means that article paragraph is also infringed Otherwise a justification of this infringement into the universal personal right would not be possible, as human dignity is inviolable and therefore under absolute protection by the Basic Law But the universal personal right protects a personal sphere that is free of state intervention 77 and that must under certain conditions be protected by the state against interventions of third parties 78 This sphere is specially connected with human dignity and article paragraph therefore influences the interpretation of this right The deeper an infringement of a the universal personal right is, the closer it gets 71 See for example BVerfGE 6, 32 (37) BGHZ 13, 334 et sequ ; 24, 72 et sequ ; 27, 284 et sequ.; 30, (10); 35, 363 et sequ.; 39, 124 et sequ 73 See BVerfGe 6, 32 (41); 4, (15 et sequ.); 8, 274 (329) 74 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article para 127 75 Jarass, Das allgemeine Persönlichkeitsrecht im Grundgesetz (The universal personal right in the Basic Law), NJW 1989, 857 (858/859) 76 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article para 128 77 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article para 132 et sequ 78 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article para 135 et sequ 72 - 12 - to the core of human dignity of this right, the stricter are rules for justification At a certain point of growing intensity of an infringement into the universal personal right it becomes an infringement of article paragraph and cannot be justified anymore The Federal Constitutional court has developed a theory of spheres to define the scope of protection of the universal personal right It distinguishes an intimate sphere, a private sphere and a social sphere The first two are protected by the universal personal right The intimate sphere is with regard to justification of infringements stronger protected than the private sphere Protected is therefore an inner circle of life This means first the protection of everything that is thematically linked to private sphere and the protection of a private space The latter is everywhere, where the individual can expect not to be observed by others 79 Protected is therefore every investigation into and collection of data about the private sphere of a person and every intrusion by state authorities The Federal Constitutional Court therefore found and interference with the universal personal right, where a census contained questions concerning the private conduct of life 80, where medical files were seized for criminal investigation81 or where a diary was used as evidence for criminal procedure 82 But the Court goes further than just protecting information related to private sphere It has developed a right to informational self-determination This right has often been regarded as a completely new fundamental right, but it is more likely to be part of the universal personal right.83 The court argued that there is no marginal date any more New technologies and new possibilities of organizing data, especially integrated information systems, made it possible to merge data in a way, that within seconds a complete profile of a person can be made 84 Hence it was essential for a person to know what data are disclosed to others to guarantee the free exercise of all fundamental rights Because a person, that didn’t know what information about her is available to others, could not act freely and without fear Thus not only data related to the private sphere is protected, but every single personal or factual information about a defined or definable person.85 Infringements are all forms of investigation, mere notice, storage, use, transmission or publication.86 If the information is gathered from open sources an infringement concerning investigation is impossible Hence infringements are for example 79 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article para 149 et sequ BVerfGE 27, (7 et sequ.) 81 BVerfGE 32, 373 (378 et sequ.); 44, 353 (372 et sequ.) 82 BVerfGE 80, 367 (373 et sequ.) 83 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article para 173 84 BVerfGE 65, (45) 85 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article para 175 86 BVerfGE 65, 80 - 13 - police controls, questionings, observations87, seizure of files, video surveillance in public places88 and so forth IX Privacy of correspondence, posts and telecommunications Article 10 of the Basic Law holds that the privacy of correspondence, posts and telecommunications shall be inviolable Correspondence is the transmission of information in a corporeal form Protected is the content of a letter as well as the circumstances of transmission.89 Correspondence is here understood in a narrow sense only relating to postal letters The privacy of posts protects all services of transport and communication offered by the post, for example letters, parcels and so on.90 Most important is the privacy of telecommunications It protects all non-corporeal transmissions of information between individuals using telecommunication.91 Protected is the content as well as the circumstances of communication Neither form (telephone, email, instant messaging etc.) nor content (text, pictures, videos etc.) are decisive X Inviolability of the home Article 13 is closely connected with the universal personal right It protects the areal component of the private sphere All space that serves the purpose of private habitation is therefore included.92 The Federal Constitutional Court also protects business premises 93 But the level of protection is lower according to the requirements of justification k The Charter of Fundamental Rights of the European Union The Charter of Fundamental Rights of the European Union contains in article a provision very similar to article of the European Convention on Human Rights Only the word “correspondence” was replaced by the word “communication” Article is therefore a provision that corresponds to a right guaranteed by the Convention Hence its meaning and scope shall be the same as the right laid down by the Convention according to article 52 paragraph What was said with regard to article of the convention can be transposed generally to article of the charter A more extensive provision was expressly not wanted by 87 BVerwGE 74, 115 (117) Dolderer, Verfassungsfragen der „Sicherheit durch Nulltoleranz“, NVwZ 2001, 130 (131) 89 Baldus, in: Epping/Hillgruber, Beck’scher Online-Kommentar GG (Beck’s online commentary basic law), article 10 para et sequ 90 Baldus, in: Epping/Hillgruber, Beck’scher Online-Kommentar GG (Beck’s online commentary basic law), article 10 para 5/6 91 Baldus, in: Epping/Hillgruber, Beck’scher Online-Kommentar GG (Beck’s online commentary basic law), article 10 para et sequ 92 Fink, in: Epping/Hillgruber, Beck’scher Online-Kommentar GG (Beck’s online commentary basic law), article 13 para 93 BVerfGE 44, 353, 371 88 - 14 - the Convent As the provision of the Convention article does not guarantee a general freedom of action But the European Court of Justice has at least recognized a general community principle that every infringement into the sphere of private activity has to be based on statute.94 Concerning the protection of home the European Court of Justice unlike the European Court of Human Rights regarded business premises as not protected 95 But the Convent did not refer to this jurisdiction during its deliberations Even though “correspondence” was changed into “communication” the scope of protection seems to remain the same as in the Convention The European Court of Human Rights had already interpreted “correspondence” in a broad sense and included all forms of communications.96 Additionally to this provision we can find in article of the Charter a right to protection of personal data Protected are not just sensitive data, but all data connected to a person Infringement is every usage of the data Paragraph establishes a right to have access to one’s personal data and to have them rectified in case they are wrong l The Polish Constitution The Polish Constitution contains four provisions connected with privacy protection The main provision is article 47 that reads: “Everyone shall have the right to legal protection of his private and family life, of his honor and good reputation and to make decisions about his personal life” Article 49 protects the privacy of communication and article 50 guarantees the inviolability of the home Article 51 finally gives a right to informational autonomy Paragraph allows obligations to disclose information about oneself only on the basis of a statute Paragraph bars public authorities from acquiring, collecting or making accessible information on citizens, if not necessary in a democratic state ruled by law Paragraphs to grant a right to access to personal data concerning oneself and a right to demand the correction or deletion of untrue information m Comparative conclusions regarding the scope of protection We have analyzed provisions and jurisdiction under four different systems The older documents, the German Basic Law and the European Convention on Human Rights, were written after the Second World War under the impression of crimes against humanity in Europe and were explicitly designed to prevent a repeat of such events They contain 94 See ECJ Hoechst, 46/87 and 227/88 ECJ Hoechst, 46/87 and 227/88; Dow Chemical Iberia, 97-99/87 96 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 24 95 - 15 - provisions concerning privacy especially for those areas that were endangered in totalitarian regimes: home and correspondence New information and surveillance technologies gave rise to new dangers The courts had to adapt the standard of protection by interpretation Especially the German Federal Constitutional Court has gone very far with this The new documents, the Polish Constitution and the Charter of Fundamental Rights of the European Union, have learnt from that development and adopted provisions protecting personal data The explicit protection of personal data makes sure, that all data are protected, not just those who relate to a certain private sphere or to private life The German Federal Constitutional Court had to make some effort of interpretation to derive the same protection from the general freedom of action The European Court of Human rights always has to find a connection to private life This becomes evident with the question whether public surveillance is an infringement The European Court of Human Rights only sees an infringement where surveillance is not foreseeable German jurisdiction recognizes in accordance with its doctrine of informational self-determination any surveillance as an infringement The same results from the provisions of the Charter and the Polish Constitution The ECHR has also problems to recognize the simple obligation to carry an identity-card and police controls as an infringement, while the German Court sees an infringement in every control Thus an explicit notion of private data enlarges the scope of privacy protection The interpretation in the examined jurisdictions regarding the rights to home and correspondence are very similar in all four systems Certain differences arise in details The European Court of Justice does not recognize business premises as protected by the notion home, while the European Court of Human Rights and the German Federal Constitutional Court so The European court of justice has widened the notion of “correspondence” to the meaning of “communication” Interesting is furthermore, that German doctrine has developed the universal personal right out of the general freedom of action, while other courts refuse to recognize a general freedom of action derived from the right to privacy The German Court argues that protection of privacy and general freedom of action are two sides of the same coin and complement each other It is an interesting question whether following this argumentation a derivation of a general freedom of action from the right to privacy can be justified Important is furthermore that the idea of human dignity plays an essential role in connection with the protection of privacy The German Federal Constitutional Court explicitly relied on human dignity when establishing the universal personal right The European Convention - 16 - doesn’t mention human dignity at any point But the European Court of Human Rights nevertheless recognizes protection of human dignity as “the very essence of the Convention” and presents it as the underlying principle of article 8.97 D Restrictions on the right to privacy - surveillance The right to privacy, like most of the rights, is not an absolute one But taking into consideration growing intrusiveness of restrictions in today’s world, in its fight against terrorism and providing security in general, one must ask himself what is the position of his “private sphere” in it? Are those restrictions the price we must pay for our safety or there is a certain point of privacy protection beyond which restrictions cannot be justified? Moreover, we can ask ourselves about the role of the state in safeguarding our rights? What is the legal reflection of the value balancing task? After giving a general image about how can restrictions on the right to privacy be justified, we will focus on the question of surveillance and wiretapping as an often used measure in criminal matters I The European Convention on Human Rights Article § of the European Convention on Human Rights (ECHR) enables justification of the restrictions by imposing certain conditions on them We can divide those conditions as follows: • LEGALITY – any restriction must be prescribed by law • LEGITIMACY – one of the objectives that ECHR prescribes must exist: interest of national security, public safety or the economic well-being of the country (described on the basis of the purposes of prevention of disorder or crime, protection of health or morals, protection of the rights and freedoms of others) • NECESSITY (that introduces the proportionality test in the Court's reasoning) • DEMOCRATIC SPIRIT (which invokes rule of law and the value of tolerance and pluralism)98 How are these principles applied in practice can be nicely shown in the wiretapping case law 97 Meyer-Ladewig, Menschenwürde und Europäische Menschenrechtskonvention, NJW 2004, 984 M Delmas – Marty, The European Convention on Human Rights: international protection vs national restrictions , p 327-328 98 - 17 - The legality condition does not only mean that the law (written or non-written) must exist, but that that law must have a certain quality also In the Malone case, the Court described the needed quality by three requirements: the law must be accessible, sufficiently precise and the consequences must be foreseeable to the citizen 99 In the case of Mr Malone, an antique dealer whose telephone communications were intercepted by police during the investigation for handling stolen goods, the Court found that the law in question was improper and that its uncertainty and obscurity deprived the citizens of the minimum degree of legal protection they must enjoy under the rule of law in a democratic society.100 (Highlighted by authors) Similarly, the Court found a lack of the quality of the law in the French legal system, in the Kruslin and Huvig cases101 Although the practice of wiretapping based on the warrant that police issues by an investigation judge seemed to be in accordance with law, the Court held that, first, “tapping and other forms of interception of telephone conversations represent a serious interference with private life“ „and must accordingly be based on a "law" that is particularly precise It is essential to have clear, detailed rules on the subject“ 102, and second, that French system didn't provide enough safeguards for such a serious interference (e.g not defined categories of subjects and nature of the offences that seek for such measures) Following those judgments, the Court found violation of Article in the case Valenzuela Contreras v Spain103 In that case, Spanish court approved wiretapping on the basis of broad statutory and constitutional provisions, trying to impose some safeguards at the same time Emphasizing the importance of the foreseeability condition – „the extent of the authorities’ discretion and the manner in which it is to be exercised must be set out in detail in domestic law so that it has a binding force which circumscribes the judges’ discretion in the application of such measures“104, the Court found the Spanish practice inconsistent with it The legality described as this, that someone may call „democratic legality“, puts in front of the states obligation to provide adequate safeguards in their legal systems and, what is the 99 Malone v UK, Judgment of August 1984, Series A, No 82;(1985)7 EHRR 14; para 66 Para 79 101 Kruslin v France, 24 Apr 1990, 12 EHHR 547; Huvig v France, 24 Apr 1990, 12 EHHR 528 102 Para 32 103 30 July 1998, 28 EHRR 483 104 Para 60 100 - 18 - most important, as Court nicely stressed in the Malone case, “gives the individual adequate protection against arbitrary interference”105 When speaking about the justification of restrictions, the Klass106 case appears as the most important one The alleged breach of Article was based on the fact that the need of notification of subjects to surveillance after the event and the system of remedies for ordering and executing such measures were not prescribed in German law Since the legality and legitimacy conditions were not in question, the Court dealt with the question whether the interference was necessary in a democratic society Although the Court found in this case that the requirements of Article were met, it provided the proportionality test for answering the “necessity question” in any such situation The Court said that assessment on adequate and effective guarantees against abuse in any adopted system of surveillance depends on all the circumstances of the case: e.g nature, scope and duration of a measure, the grounds required for their ordering, the competent authorities for their permission, carrying out and supervising, the kind of provided remedy.107 b The Charter of Fundamental Rights Article 52 of the Charter of Fundamental Rights (CFR) provides in general, for the rights guaranteed in the Charter that any limitation on the exercise of the rights and freedoms must be provided for by law and respect the essence of those rights and freedoms Furthermore, limitations are subject of proportionality test and may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others As concerns rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same, with possible more extensive protection It appears that the same standard of protection is provided when we speak about the privacy, but the CFR has a special provision on restrictions of protection of personal data Article provides three conditions: data should be processed fairly, for specified purposes and on a legitimate basis laid down by law Secondary law of the EU can give many answers on how those conditions should be interpreted and what are the practical requirements they impose 105 Para 68 Klass and other v Germany, September 1978, Series A, No 28; (1979-80) EHRR 214 107 Para 50 In the present case, for example, the Court took into consideration provided control in German system, technical advances in the means of espionage and surveillance and the development of terrorism 106 - 19 - Nevertheless, question on the assessment of compliance of the legitimate basis with the ECHR and "necessity" condition still stays opened c The Polish Constitution Polish Constitution provides that “correspondence” and “home” can be interfered only in cases and manners specified by the statute As “informational privacy” is concerned, the Constitution introduces one more form of limitation – as regard its content – by saying that “public authorities shall not acquire, collect nor make accessible information on citizens other than that which is necessary in a democratic state ruled by law.“ (Article 51 § 2) In the case K 32/04, the Commissioner for Citizens' Rights challenged the Police Act in front of the Constitutional Tribunal claiming that many of its provisions are unconstitutional (e.g open catalogue of information that may be collected by the police about persons, permissibility to keep the information collected for the purpose of investigating a criminal offence after the acquittal of a suspected person) Although the Tribunal recognized indispensability of secretive police actions in a modern state which is fighting against terrorism and crime, it said that, nevertheless, such activities should be accompanied by appropriate substantial guarantees – a definition of limits on interference within the sphere of privacy and procedural safeguards (e.g the obligation to report the control and to legalize it by an external organ, control mechanisms in case of abuse) 108 After rendering some of the contested provisions unconstitutional, the Tribunal indicated to the Polish Parliament the need to undertake legislative activity in order to guarantee constitutional rights of persons who are subject to operating control, not just in the Police Act, but also in other acts that contain similar provisions It seems that practice of the Polish Constitutional Tribunal follows the same pattern the Strasbourg Court uses in its case law The case about police surveillance nicely shows not just the legal reasoning for enhanced protection of human rights, but what can be done in practice for the achievement of the same goal There is no doubt that state’s authorities should have a certain margin of discretion when their task of providing public safety is in question, but it is no less doubtful that the “adequate and efficient safeguards” must be provided in order to protect individuals’ rights But if we take into consideration constant development of intrusive techniques, growing need for the international security in the society that is faced with the fear of terrorism, differences between states’ legal systems, the question that arises is how to 108 Part II , para - 20 - adjust privacy safeguards to that situation? How to achieve controlled environment on the international level? How wide margin of appreciation should states’ authorities enjoy? d Margin of appreciation When the Strasbourg Court applies the proportionality test in order to ascertain whether the “necessity” condition is fulfilled, it allows the member states a certain margin of appreciation The scope of the margin of appreciation depends on the nature of the legitimate aim pursued and on the particular nature of the interference involved.109 However, it is interesting to see that, even when these guidelines are taking into consideration, there are different opinions on the scope of the margin of appreciation Advocate general Léger, for example, in the case about agreement between the European Community and the United States of America on the processing and transfer passenger name records data 110, takes the view that the scope of the margin of appreciation should be the wide one Adv General's reasoning starts from the Court's point of view that when the right that intimately affects the individual’s private sphere is in question, that the margin of appreciation should be more limited It concludes that in the situation where the combating terrorism is at issue, the margin of appreciation should be wide one and the Court’s review of the necessity of the interference should be limited to determining whether there was „any manifest error of assessment“ and thus, „the Court would avoid the pitfall of substituting its own assessment for that of the Community political authorities as to the nature of the most appropriate and expedient means of combating terrorism and other serious crimes“.111 Advocate General Kokott in Promusicae112 case, on the other hand, says that „it may be doubted whether the storage of traffic data of all users without any concrete suspicions is compatible with fundamental rights“.113 Advocate General invokes the German Federal Constitutional Court's point of view, according to which such interference is of a high intensity since the individual gives no cause for the interference but may be intimidated in his lawful conduct because of the risks of abuse and the feeling of being under surveillance 109 Leander v Sweden, judgment of 26 March 1987, Series A no 116; para 59 C-317/04 111 Para 231 112 The case was about the situation in Spain, where providers of access to the Internet are required to store 110 certain data of individual users, so that those data can be used in criminal investigations An association of holders of copyrights was seeking to identify, with the aid of those data, users who have infringed copyrights C275/06 113 Para 82 - 21 - When the Court in the already mentioned Klass case says that the states may not, in the name of fight against espionage and terrorism, adopt whatever measures they find appropriate, it can be seen that the issue of the scope of margin of appreciation is certainly not the solved one As the professor Delmas-Marty114 nicely points out, criteria of “democratic necessity”, the variability of the national margin of appreciation and of the threshold of compatibility make possible not just development of human rights protection, but also the arbitrary practice Thus, attention must be paid that on the ground of the defending democracy the same democracy is not undermined or even destroyed E Conclusion After giving the historical outline of the right to privacy, we tried to describe what does the privacy standard encompasses: private life, family life, home and correspondence and focused our analysis to the right of self-seclusion, as one of the three categories of the privacy standard What seemed to be important to discuss is the fact that some legal systems (German, ECHR) don’t have special provisions on personal data protection like others (Polish, CFR), because of what scope of protection depends on the courts’ interpretation Comparison showed that the lack of explicit notion of private data can make the protection of human rights more difficult and, moreover, lead to different levels of that protection and inequality in systems (comparing German system with the ECHR) As far as the justification of restrictions on the privacy right is concerned, it has been shown that the question of achieving the balance between the security and privacy interests stays open in today’s world which is facing with new challenges (e.g more and more intrusive measures in the fight against terrorism) Should the state enjoy wide margin of appreciation in such fight depends on the point of view we take in valuing different interests, but what is for certain is that general principles introduced as a balance instruments should be transferred into specified rules binding for law enforcement authorities Only then we can expect that controlled environment of human rights protection within the security activities can be reached 114 M Delmas-Marty, The European Convention on Human Rights: international protection vs national restrictions, p 338 - 22 - F Sources BOOKS: Burkert, Privacy – Data Protection, A German/European Perspective, in: Engel/Kenneth: Governance of Global Networks in the Light of Differing Local Values, p 44 Callies, Christian/Ruffert, Matthias (ed.), Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta – Kommentar, München, 2007 Clayton, R., Tomlinson, H., The Law of Human Rights, Oxford, 2000 Delmas – Marty, Mireille, The European Convention on Human Rights: international protection vs national restrictions, Dordrecht, 1992 Ehlers, Dirk (ed.), Europäische Grundrechte und Grundfreiheiten, Berlin 2005 Epping, Volker/Hillgruber, Christian (ed.), Beck’scher Online-Kommentar Verfassungsrecht, München, 2010 Glöge, Rudi-Müller (ed.), Erfurter Kommentar zum Arbeitsrecht, München 2010 Jacobs and White, The European Convention on Human Rights, Oxford, 2004 Maunz, Theodor/Dürig, Günter (founded), Grundgesetz – Kommentar, München 2009 Meyer, Jürgen (ed.), Charta der Grundrechte der Europäischen Union, Baden-Baden, 2005 Meyer-Ladewig, Jens, Europäische Menschenrechtskonvention – Handkommentar, Badenbaden 2006 ARTICLES: Dolderer, Michael, Verfassungsfragen der „Sicherheit durch Null-Toleranz“, NVwZ 2001 Jarass, Hans D., Das allgemeine Persönlichkeitsrecht im Grundgesetz (The universal personal right in the Basic Law), NJW 1989 Meyer-Ladewig, Jens, Menschenwürde und Europäische Menschenrechtskonvention, NJW 2004 Seifert, Fedor, Postmortaler Schutz des Persönlichkeitsrechts und Schadensersatz – Zugleich ein Streifzug durch die Geschichte des allgemeinen Persönlichkeitsrechts, NJW 1999 - 23 - Warren, Samuel D./Brandeis, Louis D., The Right to Privacy, Harvard Law Review 193 (1890) - 24 -