Privacy & the ECHR

Bart van der Sloot

Privacy & the European Convention of Human Rights

Bart van der Sloot is one of the world's leading experts on the interpretation and analysis of the jurisprudence of the European Court of Human Rights on Article 8 of the European Convention on Human Rights, containing the right to privacy. He has created a private database that allows him to do statistical analysis and find correlations and patterns in the data. 

This article gives an almost complete overview of the material scope of the right to privacy under the European Convention on Human Rights.

Article 8 ECHR was adopted as a classic negative right, which provides the citizen protection from unlawful and arbitrary interference by the state with his private and family life, home and communication. The ECtHR, however, has gradually broadened its scope so that the right to privacy encroaches upon other provisions embodied in the Convention, includes rights and freedoms explicitly left out of the ECHR by the drafters of the Convention and functions as the main pillar on which the Court has built its practice of opening up the Convention for new rights and freedoms. Consequently, Article 8 ECHR has been transformed from a classic privacy right to a personality right, providing protection to the personal development of individuals.

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Privacy is commonly seen as an instrumental value in relation to negative freedom, human dignity and personal autonomy. Article 8 ECHR, protecting the right to privacy, was originally coined as a doctrine protecting the negative freedom of citizens in vertical relations, that is between citizen and state. Over the years, the Court has extended privacy protection to horizontal relations and has gradually accepted that individual autonomy is an equally important value underlying the right to privacy. However, in most of the recent cases regarding Article 8 ECHR, the Court goes beyond the protection of negative freedom and individual autonomy and instead focuses self-expression, personal development and human flourishing. Accepting this virtue ethical notion, in addition to the traditional Kantian focus on individual autonomy and human dignity, as a core value of Article 8 ECHR may prove vital for the protection of privacy in the age of Big Data.

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It has always been difficult to pinpoint what harm follows a privacy violation. What harm is done by someone entering your home without permission, or by the state eavesdropping on a telephone conversation when no property is stolen or information disclosed to third parties? The question is becoming ever more difficult to answer now that data gathering and processing initiatives have grown and are no longer focused on specific individuals, but on large groups or society as a whole. What specific harm is done by the NSA and other intelligence services gathering data on almost everyone or by the thousands of CCTV cameras registering the daily life of citizens on the corner of almost every street? There has been a longstanding debate within the literature regarding whether ‘dignitary’ or ‘immaterial’ harm should be protected under the right to privacy. Or should only harm that can be measured and quantified in monetary terms (economic harm) be taken into account? This article takes a descriptive and statistical approach to provide an insight into what types of damages are awarded, how they are calculated, and how the damages relate to the type of harm that is inflicted. It does so by analysing the damages awarded by the European Court of Human Rights with respect to privacy violations.

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This book is intended for three types of audiences:

• It is written for privacy researchers who are interested in other fields of research. Suppose you are a lawyer and are faced in your research with aspects of ethics and informatics – this book will provide you with a basic understanding of those disciplines and suggest further readings on specific topics that may be of interest to you.

• It is written for students who are interested in privacy from a multidisciplinary background. It can be used as a basic textbook in interdisciplinary educational programmes such as the minor Privacy Studies. It can also be used for disciplinary courses of which privacy is one of the aspects.

• It is also written for a general audience interested in privacy. Privacy is in the news almost every day – Facebook and Cambridge Analytica, hacks and political profiling, medical research and big data technology, the General Data Protection Regulation, and mass surveillance by intelligence agencies, etc.

Buy the book here, download the Table of Content here or download the draft legal chapter here.

Other Scientific Contributions