Protection of Privacy and Personal Rights Flashcards
What is privacy?
No legal definiton - Historical significance of actio iniurarium aestimatoria
Article 7 CFR (Respect for Private and Family Life)
Corresponds to Article 8 ECHR and focuses primarily on individual autonomy
International law on privacy
Article 12 Universal Declaration of Human Rights
Article 8 ECHR
Lopez Ribalda and others v Spain (2018)
“Private life” within the meaning of Article 8 ECHR is a broad term not susceptible of exhaustive definition. The concept of private life extends to aspects relating to personal identity, such as a person’s name or picture.
Rubio Dosamantes v Spain (2017) - spreading untested rumour about the sexual orientation and personal relationships of a well-known singer
Broadcasts intended solely to satisfy the curiousity of a section of the public about the details of a person’s private life, however famous, cannot be regarded as contributing to general interest
Lack of Compensation
For Article 8 to be applicable, an attack on a person’s reputation must have reached a certain degree of seriousness.
Environmental damage
Serious environmental damage can affect the well-being of individuals and deprive them of the opportunity to use their homes in a way that violates their private lives
The right of an individual to cultural heritage - lack of protection
No European consensus. International law currently links it to individual cases
Article 10 ECHR
Everyone has the right to freedom of expression, the exercise of which may be subject to such restrictions as are prescribed by law and are necessary in a democratic society, for various purposes, including the protection of the reputation or rights of others and preventing the disclosure of information received in confidence.
Article 8 ECHR
Everyone has the right to respect for his private and family life, his home and his correspondence. Public authorities may only interfere with the exercise of this right for various specific purposes insofar as is necessary in a democratic society, including the protection of the rights and freedoms of others.
When is a privacy violation permitted?
- Action in the framework of the legal order
- Acting with the consent of the authorised person
- Acting in the legitimate public interest
Consent to a violation of personal right
- Exclusion of unlawfulness
- Exclusive circumstance
- Factual Situaton/ Statement similar or a declaration of will
Quasi-legal act
- Legal action (but not declaration of will)
- One-sided
- Revocable
- Informal
- Accessible to persons acting with sufficient discernment
Consent as a legal act?
- Unilateral legal act
- Informal
- Revocable
- Binding (?)
Types of authorisation to interfere
- Consent given prior to the infringement = abstract/ specific
- The “blank” consent is not effective
As a rule, no special form of consent is necessary
There are exception, e.g. permission to interfere with copyright in some countries must be given in writing.
Problem of implicit consent? E.g. Celebrity invites a journalist
Revocability of consent collides with the principle of legal certainty
Appeal only up to the time of the infringement
What is an image?
no legal definition
a close relationship between the development of strong protection for privacy and the development of commercial image rights. In some other jurisdictions protection of image rights has been based on the right to privacy. For example, in France the right to privacy set down in Article 9 of the Civil Code has been interpreted widely to protect private individuals and commercial aspects of personality.
Who is entitled to an image?
- Only a human being
- Not a legal person nor animal
- If there are many people in a photograph, then there are many images
The voice of the human being is not usually protected spearately in image + voice scenario
The dominant position is that recording someone else’s voice does not constitute a violation of law, unless the content of the statement contains information whose recording constitutes a violation
What do personal rights mean?
- Lack of uniform meaning of ‘personal rights’ apart from legal meaning
- It is necessary to refer to common values such as social, cultural and moral but the scope and meaning of this concept may vary according to time or place.
Article 12 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly
- No person’s private, family, domestic or correspondence life or correspondence may be interfered with arbitrarily, nor may his or her honour or good name be insulted.
- Everyone has the right to legal protection against such interference or abuse.
What does “private life” refer to?
Judgment of the European Court of Human Rights of 9 January 2018. 1874/13 López Ribalda and others v. Spain - “Private life” within the meaning of Article 8 of the Convention is a broad term not susceptible of exhaustive definition.
López Ribalda and others v. Spain - lack of compensation
The right to protection of the good name is a right protected by Article 8 of the Convention as part of the right to respect for private life, even if the person is criticised in the public debate.
