Of all articles contained in the Convention, these rationales are most prominent in the right to privacy under Article 8 ECHR. Likewise, the wording of Article 8 ECHR does not contain any explicit positive obligation, such as, for example, under Article 2, the obligation to protect the right to life; under Article 5, to inform an arrested person of the reason for arrest and to bring him or her promptly before a judge; under Article 6, the obligation to ensure an impartial and effective judicial system; and under Article 3 of the First Protocol, the obligation to hold free elections.
The original rationale behind the right to privacy was granting the citizen negative freedom in vertical relations, that is the right to be free from arbitrary interferences by the state. However, the Court has gradually diverged from the original approach of the Convention authors by accepting both positive obligations for national states and granting a right to positive freedom to individuals under the right to privacy. It comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfillment of one's own personality.
Consequently, while the original focus of the European Convention, in general, and the right to privacy, in particular, relied on negative obligations for states and the negative freedom of individuals, this rationale has weakened over time. The element of positive obligations for the state has brought with it that states are held, among others, to ensure adequate protection of privacy in horizontal relationships; for example, in relation to the prevention of violence and the protection of privacy in terms of data protection and family relations.
The motive for this was that the authors of the Convention focused on vertical relationships, while most cases concerning reputation revolve around horizontal disputes. Instead of accepting it as a subjective right of the individual under the right to privacy, it was transferred to paragraph 2 of Article 10 ECHR, so that it became one of the grounds on the basis of which states could legitimately restrict the freedom of expression. Finally, from onwards, the Court accepts matters under the scope of Article 8 in which the applicant complains of an infringement with his honor and reputation in horizontal relations, either because the state did not allow him to prevent certain publications or because he was unable to get sufficient compensation for defamatory statements.
In the first case in which it overturned its earlier case law and diverged from the intentions of the Convention authors, that of Pfeifer v. Article 8 therefore applies. The same considerations must also apply to personal honour. Besides negative freedom, autonomy has become an important value underlying the right to privacy. This value plays a role especially in relation to three topics, namely data protection, medical issues and the fairness of custodial disputes.
Although Article 8 ECHR does not contain a reference to the protection of personal data, following the living instrument doctrine, the Court has been willing to accept a number of the notions essential to the right to data protection under the scope of the Convention. The Court has accepted a number of notions connected to the idea of informed consent and control over data, among others by recognizing the right to be informed about covert surveillance, to have access to personal data, to correct them if false or outdated, and, under certain circumstances, to delete them.
Moreover, the Court has insisted on the need for an independent supervisory authority as a mechanism for the protection of the rule of law and to prevent the abuse of power, especially in the case of secret surveillance systems. In other cases, the Court demanded access to an independent mechanism, where specific sensitive data were at stake or where the case concerned a claim to access to such data.
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In Peck, in Perry and in P. In Amann and Segerstedt-Wiberg the Court demanded that governmental authorities only collect data that is relevant, and based on concrete suspicions. Finally, in the Rotaru v. Romania judgment of May 4, , the Court acknowledged the right to individuals to financial redress for damages based on a breach of Article 8 caused by the data processing activities of public authorities. Consequently, autonomy and informational self-determination have been accepted as core rationales underlying Article 8 ECHR in cases regarding the processing of personal data.
There are also other cases in which these notions are considered essential, such as in the medical sphere. Such claims often focus on either the bodily or psychological integrity of a person. It emphasizes that, in these matters, self-determination and personal autonomy are essential principles for which regard should be had. A final example of cases in which these principles play an important role is in judicial cases that regard custodial disputes.
Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8 art. Most cases in which these procedural requirements play a role regard parental authority, such as with regard to the custody over a child by divorced parents or the placing in a foster home of children living in an unstable environment.
From this fact follows an increased importance of a speedy and resolute process, since lengthy procedures may lead to the de facto determination of a case. Although the Court has been reluctant to focus on substantive rights in such matters, it has granted both parents, inter alia, the right to be heard, to be informed in full about existing reports and documents, and to have their interests weighed in a fair and balanced manner.
The importance of public access to the conclusions of such studies and to information which would enable members of the public to assess the danger to which they are exposed is beyond question. Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act, or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process.
The Court has provided protection to a range of activities under Article 8 ECHR that it sees as essential to the right to personal development. It goes too far to discuss all these cases. Moreover, an adult may be forced to submit himself to paternity proceedings, for example, through DNA-tests, and sperm-banks may under certain circumstances be held to reveal the identity of a sperm-donor.
Consequently, it has assessed cases under the scope of Article 8 ECHR in which a spouse complained that she had to adopt the surname of her husband, even though she was known by her maiden name in her inner circle and in professional relationships. The Court has also accepted that, under certain circumstances, children have the right to choose their forename or their surname, and, finally, the Court has granted that individuals have the right to alter their birth-given name.
In this sphere, the Court has accepted that Article 8 ECHR not only provides the individual with protection of his bodily integrity, the right to privacy also guarantees the psychological and moral integrity of the person, which encompasses aspects of his physical and social identity. It has strongly condemned European countries that did not accept the newly adopted identity and gender of transsexuals, leading to the situation in which post-operative transsexuals lived in an intermediate zone as not quite one gender or the other.
National states need to change the gender in either the birth register or in other civil registers, among other things in order to allow transsexuals to marry a person of the opposite sex, as some European countries prohibit same sex marriages. Minority identity: Not only with regard to transsexuals, but more in general, the Court is hesitant to allow national laws that have the aim or effect of creating inequality among certain groups in society.
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That is why, in contrast to its general approach, the Court has accepted that in this field, applicants may not only successfully complain about concrete harm and individual injury, but also about general policies and laws as such so called in abstracto claims , without them having been directly applied to the applicants. For example, a case was assessed in which the national legislator had adopted a prohibition on abortion and the applicant neither was pregnant nor had been refused an interruption of pregnancy.
The Court, however, held that the applicants were challenging a legal position, that of an unmarried mother and of children born out of wedlock, which affected them, according to the Court, personally. This doctrine of victimship through the mere existence of a legal provision has been applied specifically with regard to the regulation of homosexual practices.
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In general, such regulations have been found to interfere with the private life of individuals due to the general stigmatization of homosexuality, leading to reluctance to disclose their sexual orientation and having a chilling effect in relation to engaging in sexual activities and developing their personality to the fullest. In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life: either he respects the law and refrains from engaging — even in private with consenting male partners - in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution.
Finally, the Court has also held that under certain circumstances, states may have a positive obligation to adopt wider liberties and freedoms for minorities in order to allow them to fully experience and develop their minority identity. This is the case even though, under the pressure of development and diverse policies or by their own choice, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children.
Measures affecting the applicant's stationing of her caravans therefore have an impact going beyond the right to respect for her home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition. What is more, states may be under the positive obligation to take active measures to respect and facilitate the development of these minority identities. Following the doctrine of the Convention as a living instrument, the Court has also provided protection under Article 8 ECHR to non-traditional families, including the relationship between non-biological parents and bastard or adoptive children, between parents and children who do not live together, and it has also provided protection to family life between children and grandparents or third parties, if there exist special emotional and psychological bonds.
According to the Court, the respect for private life may include the encouragement of and assistance to a prisoner to lead a good and useful life, to maintain his self-respect and a sense of personal responsibility, and to establish and maintain such relations with persons and agencies outside prison as may best promote the interests of his family and his own social rehabilitation. The positive rights of citizens and positive obligations for states under Article 8 have led to a fast marginalisation of Article 12 ECHR, which is increasingly redundant.
Article 8 provides protection to homosexual couples and families founded through adoption or artificial insemination, which are denied protection under the right to marry and found a family. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.
Similarly, the Court has accepted that correspondence over business telephones and conversations regarding professional affairs fall under the scope of the right to privacy. This notion of personal development in external relationships and professional affairs has led the Court to accept many cases which solely or primarily regard professional conduct under the right to privacy. Although there is no agreement among scholars in terms of which value privacy can be best defined, generally two concepts play an important role, namely negative freedom and autonomy.
Negative freedom is the situation in which one is free from being acted upon by others. Autonomy revolves around a form of control, active influence or informed consent. In this article, three points have been made. First, that the origins of the Convention as a whole and the right to privacy in particular lie in defending a concept of negative freedom in vertical relations, that is between the state and the citizen.
This rationale is most apparent in security-related cases-- when wire-tapping telecommunication, when officials enter private houses in order to arrest a habitant or to seize certain documents or objects, with regard to general surveillance measures by secret service organizations, or matters in which the territorial integrity of the state is at stake. However, the Court has gradually diverged from the original approach by the Convention authors by accepting both positive obligations for national states and granting a right to positive freedom to individuals under the right to privacy.
Consequently, states are held, among others, to ensure adequate protection of privacy in horizontal relationships. Most prominently, this development plays a role in matters in which the freedom of expression is used to infringe upon the privacy or reputation of others.
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Although the right to reputation and honor had been explicitly omitted from Article 8 ECHR by the authors of the Convention, in its case law from onward, the Court has nevertheless accepted it as a subjective right falling under the protection of privacy. The second point is that more and more emphasis has been placed on the concept of autonomy. These requirements play an especially important role in cases revolving around parental authority and custody. The Court has granted parents, among others, the right to be heard, to be informed in full about existing reports and documents, and to have their interests weighed in a fair and balanced manner.
These matters seem to go beyond the traditional concepts of autonomy and negative freedom.
It has been suggested that the notion of human flourishing, a key concept in virtue ethics, might instead be able to provide a solid theoretical explanation for the broad approach taken by the ECtHR. For example, John Finnes has suggested that human flourishing embodies the protection of, inter alia, life itself; for example, in relation to health and safety, knowledge, excellence in work and play, friendship and self-expression. This broad list of categories already comes quite close to the different matters the Court has provided protection to under the scope of Article 8 ECHR.
In contrast, such an active role by the state seems difficult to reconcile with the rationale of negative freedom and only in partial harmony with a focus on individual autonomy. This is not only of theoretical importance; it has practical significance for privacy protection in the age of Big Data. Adequate protection currently suffers from two important aspects of the present privacy paradigm. First, the current privacy paradigm is focused on individual rights. Second, it is focused on individual interests. Often, an individual is simply unaware that his personal data is gathered by either his fellow citizens e.
But even if a person would be aware of these data collections, given the fact that data gathering and processing is so widespread and omnipresent, it will quite likely be impossible for him to keep track of every data processing which includes or might include his data, to assess whether the data controller abides by the legal standards applicable, and if not, to file a legal complaint.
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And if an individual does go to court to defend his rights, he has to demonstrate a personal interest, that is personal harm, which is a particularly problematic notion in Big Data processes. For example, what concrete harm has the data gathering by the NSA done to an ordinary American or European citizen? This also shows the fundamental tension between the traditional legal and philosophical discourse and the new technological reality — while the traditional discourse is focused on individual rights and individual interests, data processing often concerns structural and societal issues.
In reality, it seems that more structural and abstract interests are at stake.
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