Lecture 7 Flashcards
(19 cards)
proliferation of the right to privacy - definition
= rapid increase in the number or amount of something (in this case, the right to private life)
the law on the right to privacy
Article 8 ECHR ➞ you have to respect the right. It’s not up to the court to find private life, but when you have this than states shouldn’t interfere with that
- private life, family life and (professional) correspondence
Article 7 CFR
+ other articles in the CFR
- art 1 CFR: human dignity
- art 3 CFR: physical and mental
- art 8 CFR: protection of personal data
➞ so under the charter you have more provisions where this is only one article in the convention
the right to privacy has changed over the years by means of interpretation ➞ what case law for e.g.?
Locascia and others v Italy: was a complaint that arose from the waste crises, which also had implications for the health. The court said ➞ this issue is sufficiently serious that falls within the scope of article 8 ECHR. Because it effects human dignity (although you could argue that it is a public matter)
Klimaseniorinnen and others v Switzerland: climate change case. The court found that art 8 ECHR was violated by Switzerland because they hadn’t taken sufficient steps for climate change
how was the right to privacy broadened and managed due to interpretation?
- Positive obligations ➞ state has to make sure that the rights in the convention are complied with
- Living instrument ➞ need to interpret it according to the time of now
- Consensus interpretation ➞ you look at what the other countries and courts think
- Teleological interpretation ➞ look at the objective or aim of the provision + effectiveness
-
Incrementalism ➞ at the beginning the starts by broadening slowly, and every time you have a new case the court can broaden the scope even more
_Barbulescu v Romania_ ➞ the term ‘private life’ is difficult to define. The court said in this case that it is a broad term not susceptible to exhaustive definition
Case Nikki vs NL (right to privacy)
a case where it doesn’t fall within the scope. Nikki wanted an autonomic arm to be able to do everything, but this got rejected. His right to develop himself wasn’t effected because he could still do this without the arm. He also still had access to healthcare in general. So in this case it didn’t fall within the scope at all. But this was in 2003, and should a similar case go to the court now, then maybe it would fall within the scope
the broad categories of article 8 ECHR
1. Physical, psychological and mortal integrity; human dignity
- health care, end of life, etc
- disability
- environmental, etc
2. Privacy (more of the original understanding)
- personal data
- reputation, etc
3. Identity and autonomy
- religion
- personal development, etc
Lacatus v Switzerland case: she didn’t have a job and went to beg for money. In 2011 it was forbidden to do this, so she got a fine of 500,-. She couldn’t pay, and then was put in prison. This case ended up in the EU court.
Can a person who is punished for begging claim protection of the scope of article 8 ECHR?
= the right to call on under people for assistance is the very essence of the rights protected by article 8
- this woman was very poor, and wasn’t given any help. So yes, it falls under the scope
- In this case there was a legitimate aim. The court said that it wasn’t proportionate to have a law where no-one was allowed to beg at anytime anywhere.
counterweight to the development of the right to privacy
a. Margin of appreciation ➞ could argue that if it is sensitive and there is no consensus, that it will fall under this and will be up to the states
b. Procedural review
importance of data
free flow of data from MS to MS is important, but also for companies
three judgements about data protection in the EU
- Digital rights Ireland
- Google Spain
- Schrems II
Which judgment concerned the interpretation of the data protection directive?
= google spain case
- it dealt with the right to be forgotten
Which judgement concerned the safe harbour decision?
= schrems II
Which judgement concerned the validity of data retention directive?
= digital rights ireland
- Concerned the directive which came after some terrorist attacks. It is data about certain things. Wanted to collect all meta data within the union to prevent terrorists, but this wasn’t expectable
In which judgement was a lack of sufficient safeguards problematic?
schrems II. You didn’t have an effective remedy as an individual + digital rights Ireland, because there was almost unlimited power to collect data
the right to be forgotten encompasses the right to have google search results be removed & overrides the economic interest of search engine operators but not the general public’s right to information???
➞ correct or incorrect?
both correct
The level of review by the CJEU in the three judgments can be characterized as
➞ strict
data protection: a fundamental right?
According to the court of justice it should be protected.
- processing of personal data by search engines (google spain)
the law on data protection in the EU
Article 8 CFR ➞ so completely different compared to other rights
- personal data: something that you can be identified by
- Processing personal data: how you can use it
limitations to data protection
- Schrems II: must only apply when it is strictly necessary
- Digital rights ireland: the EU legislature discretion is reduces ➞ review of that discretion should be strict
