By Mathijs Hummel & Cheryl Haaima
The tight to privacy
In Europe and most of the world, privacy is a fundamental freedom and a fundamental right. Only people of flesh and blood can claim privacy. We can invoke the law against other citizens, against companies and organizations and against our government. However, the right to privacy is not absolute. As with other fundamental rights - such as the right to freedom of expression - the right is balanced against others’ rights or interests. If there are conflicting interests, these interests may prevail over the privacy interest.
History of privacy law
In many countries, the right to privacy, is enshrined in various (national) constitutions, international treaties, charters and declarations. It would be going too far to give you a full history of legal history, but the bottom line is that privacy, as we know it as fundamental and human rights, is relatively young. It was created as a result of the rise of industrial developments and the accompanying revolution in the second half of the 19th century. The basis for this was created by the increasingly freer thinking in Europe and the US in the 18th and early 19th centuries, the American and French revolutions and, for example, the emergence of the republic as a form of government. The people gave protection of their interests under the management of the state and the state provided protection.
The late 19th and early 20th centuries were characterized by major industrial developments (aircraft, blimps, automobiles, radio, etc.) and political tensions. In this climate, thoughts about privacy also arose as a theoretical concept and right to which one could claim. This was expressed, among other things, as the right to be left alone and the right to a private life without interference from others. Political tensions eventually led to the First World War and that was followed by an economic crisis. This crisis ultimately led to the rise of National Socialism and in 1939 to the beginning of World War II.
The state as an offender
The state has the task of protecting its citizens, but the state has traditionally also been the actor who caused the greatest infringement of our rights and freedoms (whether this statement will still stand in 2020, we will discuss in a subsequent article). As citizens, we primarily depend on the government for our protection and the protection of our interests. However, the ideas of the government determine the protection we may or may not receive. The importance and value of privacy can change if a government changes. This becomes particularly clear when we briefly consider World War II.
In Germany and the Occupied Territories, entire populations were excluded, isolated and constantly monitored. Population registration and administration was used to detect targets. A completely legitimate record was suddenly used for human rights violations and crimes against humanity. Citizens were urged to monitor neighbours, friends and family as much as possible and to report suspicious activities to the authorities. Even in your own house you could not imagine yourself unobserved. We all know by now what consequences this has led to. Not only were the occupiers and their allies guilty of large-scale privacy violations, the Allies also infringed that right in their search for information, spies and traitors.
Privacy as a human right
After the Second World War, a broad social debate arose about the events of the war. The availability of proper population accounts in combination with an identification requirement introduced by the occupying forces was an extremely effective tool in the execution of crimes. To prevent such horrific acts by governments in the future, the Universal Declaration of Human Rights (UDHR) has been drawn up, a turning point in modern history.
The UDHR was adopted by the United Nations General Assembly on December 10, 1948. The UDHR includes so-called integrity rights. This includes ‘non-suspendable’ rights. These are rights that should not be waived under international treaties, even in times of emergency. The right to respect for privacy is an example of a right that cannot be suspended.
In 1949, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was enacted by the Council of Europe, the forerunner of today’s European Union. The ECHR was intended to make part of the rights and freedoms established in the UDHR binding in Europe. The ECHR includes Article 8 Right to respect for private, family and family life, housing and correspondence. To this day, many privacy breaches are tested against this article.
From the 1980s onwards, the development of privacy rights and associated legislation accelerated. In the 1980s, people worked on privacy legislation and universal privacy principles in several places around the world. These privacy principles very recently formed the basis for the General Data Protection Regulation, the GDPR. Think for example of goal limitation, legality, data minimization and transparency. More recent developments are food for future blogs.
The world has changed beyond recognition since World War II. The computer and the Internet have enriched and made life easier for us, but at the same time threaten us without us noticing.
Something to think about for the next blog: is the state still the actor who poses the greatest threat to our privacy today?
Also read the introduction of this blog series: The fundamental right to privacy.