FR  I  EN
#JRGPD


The definition of private life

Estelle De Marco, 3 June 2021. First published on Linkedin on 15 March 2019.

 

The right to privacy, or more exactly, in the continental European legal tradition, the right to respect for private and family life, receives several definitions[1], which has led Prof. Daniel J. Solove to consider privacy as being a "concept in disarray", a notion that "suffers from an embarrassment of meanings"[2]. This situation is due to the silence of legal instruments in relation to the content of privacy, which is in practice casuistically identified by courts.

However, the analysis of existing doctrinal approaches of privacy (I) enables to conclude to the possibility to define private life quite clearly, by operating a distinction between private life and protected private life (II).

I - Existing doctrinal approaches of privacy

Four main doctrinal approaches of privacy can be identified. The first approach consists of endeavouring to identify the boundaries of private life through the identification of its elements of content. Two other approaches - which are not incompatible with the first one - do define privacy in relation to several sub-categories or "dimensions" that are considered as composing the notion. The fourth approach does not define anymore privacy positively in relation to its components, but negatively, in relation to third parties' rights. These four approaches of privacy can be briefly[3] detailed as follows.

I.1 - Definition of private life in relation to its elements of content, expressed as information pieces, activities and freedoms

The content of privacy has been extensively defined by some authors as the "right to be left alone"[4], which refers to "the right of everyone to take decisions at his own discretion into his zone of private life"[5], or to the right to an opportunity to shape one's own life, with minimal outside interference[6].

More restrictively, a large doctrine classifies information pieces and freedoms that compose privacy (identified as such by courts) into virtual "circles" or spheres that surround a given natural person, each of these spheres being shared by more or less third parties. For example[7], can be identified a sphere of "personal life", which contains "data related to identity, to racial origin, to physical or mental health, to one's character or morals"[8], and which is and will be shared with some particular groups of third parties only, such as the family and close relatives, but will be prohibited to other persons (and therefore protected against these persons).

On the same line but without precise classification, and providing perhaps a wider perspective, the European Court of Human Rights (ECtHR) protects a series of information pieces and freedoms that go beyond purely private activities, such as the "right to identity[9] and personal development"[10]; the right, to a certain degree, "to establish and develop relationships with other human beings"[11]; the right to "self-determination and personal autonomy"[12]; "the physical and psychological integrity of a person"[13]; "professional and business activities"[14]; and correspondence[15], which includes notably letters[16], telephone calls and conversations[17], pager messages[18], professional correspondence[19], correspondence intercepted in the course of business or from business premises[20], and electronic communications (including the right for an individual to control "information derived from the monitoring of (his or her) personal Internet usage"[21]). Information relating to correspondences is also protected, such as the latter's date or the number dialled[22]. Personal data are also protected[23] and the ECtHR considers especially that both the storing and the release by a public authority of information relating to an individual's private life amounts "to an interference with his right to respect for private life"[24], no matter how the stored information will be used[25]] and particularly within the context of "surveillance methods resulting in masses of data collected"[26]. More generally, "mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8"[27].

I.2 - Definition of private life in relation to the different categories or "dimensions" that compose this notion, defined according to the context of the private life exercise

Some legal authors break privacy into several categories, dimensions or types of privacy, which are not based on the precise identification of the information and freedoms that compose privacy, nor on the links that exist between the privacy owner and third parties that take part in this context. The research consortium of the PIAF EU project[28] highlights that for example, Dr. Roger Clarke "considers four conventional yet overlapping categories: privacy of personal information, of a person, of personal behaviour, and of personal communications"[29]. The research consortium of the PRESCIENT EU project "identified seven types of privacy" (namely "of a person, of thought and feelings, of location and space, of data and image, of behaviour and action, of communications, and of association, including group privacy"[30]). For their part Prof. Daniel J. Solove and Prof. Beate Rössler identified respectively six and three "categories" or "dimensions" of privacy[31]. Among other authors following this approach[32], Prof. Ahti Saarepää identifies "at least (.) eleven main core areas" of privacy (namely physical privacy, spatial privacy, social privacy, media privacy, anonymity, privacy in the processing of personal data, ownership of information, right to be assessed in the proper light, patient privacy, privacy in working life, and communicative privacy)[33].

I.3 - Definition of privacy in relation to different dimensions corresponding to the actions that are required to preserve privacy

Beside the afore-mentioned conceptions of privacy, Prof. Pierre Kayser divides private life into two privacy spheres or dimensions which can be referred to as the "secrecy of private life" and the "freedom of private life"[34].

  • The secrecy of private life is the "opaqueness for others of the personal and family life". It notably includes the secrecy of communications, the secrecy of relationships built up with third parties, the right to be forgotten, and the secrecy of one person's image and voice[35].
  • The freedom of private life is defined as "the power, for a person, to take the decisions that seem to her the bests for this part of her life"[36], as a "general freedom which includes several particular freedoms", which may be described as physical (as the physical freedom, the freedom of movement) or as moral (as the freedom of belief)[37]. It notably includes the release from the home "to develop one's physical, intellectual, moral and spiritual personality"[38], the freedom of movement on the Internet, the freedom to make decisions, to make choices, notably regarding purchased goods and services[39], to communicate these choices to third parties, to open the doors of one's own private life to certain persons and to close these doors to other people[40]. The freedom and the secrecy of private life are interrelated, since the exercise of the freedom of private life creates a privacy content that is covered by the secrecy, and since the secrecy might be a condition to the proper exercise of some privacy freedoms[41].

I.4 - Negative definition of privacy, in relation to third parties' rights

Several authors consider that privacy must be negatively defined, through the identification of its limits, which are the measures that allow pursuing public interests[42] in addition to the bounds that a person assigns to his or her own privacy sphere[43] or that are implied by the participation of this person in social and public life[44]. Under this approach, the notion of private life is not anymore considered as being a "secret garden", in a pure "geographical conception"[45], but as a personal zone that must be reconciled with the necessary interactions a person has with others[46] or as a sphere where the individual can do anything that is not prohibited by law[47], which also implies relations with third parties. The lack of third parties' rights[48] to interfere with the personal zone is therefore the criterion that will enable to identify if an element relating to the life of a given person will be considered as private or non-private, each third party being more or less legitimate to control this person's freedom to act or this person's personal information[49].

This definition of privacy is highly interesting since it tends to consider that the protection of personal life against disclosure and interference of third parties will depend on the legitimacy of these third parties to access information or to prevent the exercise by someone else of one of his or her freedom, which drives to apply a very clear methodology that enables to find out, in each individual case, what relates to private life and what is excluded from this sphere. Indeed, this methodology is well-known and is proposed in the European Convention of Huamn Rights (ECHR) and the European Union Charter of Fundamental Rights (EUCFR)[50].

However, this conception suffers from an important difficulty: it tends to consider that non-protected elements of private life are not elements of private life, which might be an issue since the application of the ECHR and EUCFR principles imply the private zone as field of inquiry. It might also appear as being contradictory to identify one given element of life as private toward one given third party and as non-private toward another third party... since such a statement leads to admit that absolutely no element of life is private in nature (most intimate information being susceptible to be legitimately known by a spouse, a partner or a medical practitioner).

These conclusions might lead to keep considering the principle of a definition in relation to third parties' rights, but to apply this principle to the protected privacy sphere and not to privacy as a whole.

II. A definition of privacy distinguishing privacy and protected privacy

The analysis of existing definitions of privacy enables to draw another approach of the notion in which private life is broadly defined as including all the information pieces and freedoms exercised by a given person, but in which the protected privacy is defined in relation to third parties' rights. This last approach seems to us to be the most relevant one, since it does not contradict the other approaches while it takes into account the extent of the protection offered to privacy in practice.

Under this conception, the notion of private life is still considered as being a personal zone that must be reconciled with the necessary interactions a person has with others[51], including measures that allow pursuing public interests[52] or the defence of third parties rights[53], in addition to the bounds that a person assigns to his or her own privacy sphere[54] or that are implied by the participation of this person in social and public life[55].

The difference of this conception compared to the approach that we entitled "negative definition of privacy in relation to third parties' rights", is that in our conception the content of private life covers all the information pieces and all the freedoms that concern a person, while third parties' rights will enable to define the boundaries of the protected privacy zone, and not anymore the privacy sphere as a whole. Under this approach, all what relates to an individual will be private in nature, but private elements of life will only be protected by legal instruments, casuistically, depending on third parties' rights[56], third parties who may be more or less legitimate to control another person's freedom to act or another person's personal information[57].

This approach of privacy seems at first glance very extensive, but after appropriate consideration it seems to us to be a very accurate one, since it does not contradict the other approaches[58], while it enables to give a practical content to privacy as it is protected by legal instruments, the ECtHR itself considering that, for example, "there is no reason of principle to justify excluding activities of a professional or business nature from the notion of "private life"[59], underlining the concordance between "such broad interpretation and the one of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 2011"[60]. Indeed, this approach includes all the distinctions already analysed through the different definitions of privacy, including the "right to be left alone"[61], while it drives to apply the very clear ECHR and EUCFR methodology that enables to find out, in each individual case, what relates (or should relate) to protected private life and what is excluded from this sphere. This methodology consists schematically of analysing if one given third party' intrusion into private life has a legal basis, pursues a legitimate aim, and is necessary and proportionate to the aim pursued, which might also lead to analyse if the protection of privacy is not itself illegitimate, unnecessary and non-proportionate, where its exercise limits another fundamental right[62].

In other words, under this approach, the notion of privacy is understood extensively within the boundaries set up by the ECHR and the EUCFR in order to balance conflicts of fundamental rights, which also means that the content of the protected privacy is definitely contextual, and depends on the concerned individuals and stakeholders, in addition to the morals of a time[63] and to the value and the legitimacy of the other rights at stake[64].

 

The current publication is created within the project "INtroduction of the data protection reFORM to the judicial system" (INFORM). The project is funded by the European Union's Justice Programme (2014-2020) under Grant Agreement ? 763866. The content of this publication represents the views of the author only and is his/her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

 

Bibliographie

[1] In relation to this section and for further developments see Estelle De Marco, Comparative study between Directive 95/46/EC & the GDPR including their relations to fundamental rights, March 2018, Deliverable D2.10, INFORM project (INtroduction of the data protection reFORM to the judicial system), JUST-JTRA-EJTR-AG-2016, GA n° 763866, Section 2.2.1; Estelle De Marco in Estelle De Marco et al., MANDOLA Deliverable D2.2 - Identification and analysis of the legal and ethical framework, version 2.2.4 of 12 July 2017, MANDOLA project (Monitoring ANd Detecting OnLine hAte speech) - GA n° JUST/2014/RRAC/AG/HATE/6652, http://mandola-project.eu/publications, Section 4.1.2

[2] Daniel J. Solove, "A taxonomy of privacy", University of Pennsylvania Law Review, vol. 154, n° 3, Jan. 2006, http://www.law.upenn.edu/journals/lawreview/articles/volume154/issue3/Solove154U.Pa.L.Rev.477%282006%29.pdf (last accessed on 14 February 2018). See also Daniel J. Solove, Understanding privacy, Harvard University Press, 2008, esp. p.1 et seq.

[3] An extensive presentation of these approaches can be found in Estelle De Marco in Estelle De Marco et al., MANDOLA Deliverable D2.2 - Identification and analysis of the legal and ethical framework, op. cit., Section 4.1.2. An overview of different conceptions of privacy, including its deny, can also be found in Judith DeCew, "Privacy", The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/spr2015/entries/privacy/ (last accessed on 14 February 2017).

[4] See for ex. Stéphane-Dimitri Chupin, La protection de la vie personnelle délimitée par les frontières des sphères privées et publiques, thesis, Université Paris I, 2002, p. 32; Samuel D. Warren and Louis D. Brandeis, "The right to privacy", Harvard Law Review, vol. IV, 15 Dec. 1890, n°5. For an history of privacy including comments on S. Warren and L. Brandeis conception of privacy, Ahti Saarenpää, "Perspectives on privacy", in Ahti Saarenpää, Legal privacy, LEFIS Series, 5, Prensas Universitarias de Zaragoza, p. 20 (http://puz.unizar.es/detalle/898/Legal+privacy-0.html), available at http://lefis.unizar.es/images/documents/outcomes/lefis_series/lefis_series_5/capitulo1.pdf (last accessed on 12 February 2018); François Rigaux, "Les paradoxes de la protection de la vie privée", in La protection de la vie privée dans la société d'information, under the direction of Pierre Tabatoni, tome 1, Cahier des sciences morales et politique, PUF, Oct. 2000, p. 37, quot. p. 41.

[5] According to the Supreme Court of the United States in a decision of 1965. Translated from French. Pierre Tabatoni, "Vie privée : une notion et des pratiques complexes", in La protection de la vie privée dans la société d'information, under the direction of Pierre Tabatoni, tome 1, Cahier des sciences morales et politique, PUF, Oct. 2000, p. 3, quotation p. 4.

[6] Formula from Prof. Stig Strömholm according to Advocate General Cabannes in conclusions sous CA Paris, 15 mai 1970, D. 1970, jurisp. p. 466, quot. p. 468. Prof. Stig Strömholm conception of privacy is also mentioned by Alexandre Maitrot de la Motte, "Le droit au respect de la vie privée", in La protection de la vie privée dans la société d'information, under the dir. of Pierre Tabatoni, tome 3, 4 et 5, Cahier des sciences morales et politique, PUF, Jan. 2002, p. 271, and by Pierre Kayser, La protection de la vie privée par le droit, PU d'Aix-Marseille/Economica, 3rd ed., 1995, p. 329.

[7] For other national examples, see for instance Estelle De Marco et al., Deliverable D3.3 - Legal recommendations - ePOOLICE project (early Pursuit against Organized crime using envirOnmental Scanning, the Law and IntelligenCE systems), project n° FP7-SEC-2012-312651, version 1.3 of 10 December 2014, available at https://www.epoolice.eu/EPOOLICE/servlet/document.listPublic, Section 3. (last accessed on 12 February 2018).

[8] François Terré, "La vie privée", in La protection de la vie privée dans la société d'information, under the dir. of Pierre Tabatoni, tomes 3, 4 et 5, Cahier des sciences morales et politique, PUF, 1re éd., janv. 2002, page 138.

[9] The ECtHR adds that article 8 of the convention protects "aspects of an individual's physical and social identity" in ECtHR, 1st Sect., 7 February 2002, Mikulic v. Croatia, application no. 53176/99, §53.

[10] ECtHR, 3rd Sect., 25 September 2001, P.G. and J.H. v. the United Kingdom, appl. n°. 44787/98, §56, referring to ECtHR, ch., 22 February 1994, Burghartz v. Switzerland, §24, Series A, n° 280 B, p. 28. See also ECtHR, 4th Sect., 29 April 2002, Pretty v. The United Kingdom, appl. n° 2346/02, §61, referring to the same judgment.

[11] See the judgments mentioned in the previous note and ECtHR, Niemietz v. Germany, op. cit., §32; Relating to the non-exclusion of "the right to establish and develop relationships with other human beings" and of "activities of a professional or business nature", see also the judgment ECtHR, gr. ch., 16 February 2000, Amann v. Switzerland, appl. n° 27798/95, §65.

[12] Ivana Roagna, Protecting the right to respect for private and family life under the European Convention on Human Rights, Council of Europe human rights handbooks, Council of Europe, 2012, p. 12, available at: www.echr.coe.int/LibraryDocs/Roagna2012_EN.pdf (last accessed on 12 February 2018); see also for instance the case ECtHR, Pretty v. The United Kingdom, op. cit., §§ 61 and 67.

[13] Ivana Roagna, Protecting the right to respect for private and family life under the European Convention on Human Rights, op. cit., p. 22, referring to ECtHR, gr.ch., 16 December 2010, A, B, and C v. Ireland, application n° 25579/05; see also ECtHR, ch., 26 March 1985, X and Y v. the Netherlands, appl. n°8978/80, § 22.

[14] ECtHR, Niemietz v. Germany, op. cit., §28 and 29; See Pierre Kayser, op. cit., page 43 and 44 and footnote n° 158. Before the ECtHR has ruled on this subject, the Court of Justice of the European Union stated that the need for a protection of legal persons' private sphere of activities "must be recognized as a general principle of Community law": judgment of 21 September 1989, Hoechst v. Commission, joined cases 46/87 and 227/88, European Court Reports 1989, pp. 2859-2924.

[15] See for instance Commission, plen., 27 February 1995, B.C. v. Switzerland, Application n°21353/93; ECtHR, ch., 25 March 1983, Silver and others v. the United Kingdom, appl. n°5947/72, § 84.

[16] See for instance ECtHR, Silver and others v. the United Kingdom, op. cit. §84.

[17] See for instance ECtHR, plen., 2 August 1984, Malone v. The United Kingdom, appl. n°8691/79, §41; ECtHR, ch., 16 December 1992, Niemietz v. Germany, appl. n°13710/88, §32.

[18] ECtHR, 2nd Sect., 22 October 2002, Taylor-Sabori v. the United Kingdom, appl. n°47114/99, §18.

[19] ECtHR, Niemietz v. Germany, op. cit., §32.

[20] ECtHR, ch., 25 March 1998, Kopp v. Switzerland, appl. n°23224/94, §50; ECtHR, ch., 25 June 1997, Halford v. the United Kingdom, appl. n°20605/92, §§ 44-46.

[21] See ECtHR, 4th Sect., 3 April 2007, Copland v. the United Kingdom, appl. n° 62617/00, § 41; Ivana Roagna, Protecting the right to respect for private and family life under the European Convention on Human Rights, Council of Europe human rights handbooks, Council of Europe, 2012, www.echr.coe.int/LibraryDocs/Roagna2012_EN.pdf, p.32 (URL last accessed on 12 February 2018).

[22] ECtHR, 3rd Sect., 25 September 2001, P.G. and J.H. v. the United Kingdom, appl. n°. 44787/98.

[23] ECtHR, gr. ch., 16 February 2000, Amann v. Switzerland, appl. n° 27798/95, §65.

[24] ECtHR, ch., 26 March 1987, Leander v. Sweden, appl. n°9248/81, §48; See also ECtHR, gr.ch., 4 May 2000, ECtHR, Rotaru v. Romania, appl. n°28341/95, §45 et seq.

[25] ECtHR, gr.ch., 16 February 2000, Amann v. Switzerland, op. cit. §69; See also (rel. to phone calls) ECtHR, ch., Kopp v. Switzerland, op. cit. §53.

[26] ECtHR, 4e sect., 12 janvier 2016, Szabó and Vissy v. Hongrie, appl. no37138/14, §68.

[27] European Court of Human Rights, Factsheet, "Protection of personal data", Press Unit, April 2017, p. 1, available on the Council of Europe website: http://www.echr.coe.int/Documents/FS_Data_ENG.pdf (last accessed on 12 February 2018).

[28] Paul De Hert, Dariusz Kloza, David Wright et al., Recommendations for a privacy impact assessment framework for the European Union, PIAF (Privacy Impact Assessment Framework) project, Grant agreement JUST/2010/FRAC/AG/1137 - 30-­-CE-­-0377117/00-­-70, Deliverable D3, November 2012, p.13, available at http://www.piafproject.eu/Deliverables.html (last accessed on 12 February 2018).

[29] Ibid., p. 13, referring to Roger Clarke, What's Privacy'?, 2006, http://www.rogerclarke.com/DV/Privacy.html (last accessed on 12 February 2018).

[30] Ibid., p. 13, referring to Serge Gutwirth, Michael Friedewald, David Wright, Emilio Mordini et al., Legal, social, economic and ethical conceptualisations of privacy and data protection, Deliverable D1 of the PRESCIENT project [Privacy and emerging fields of science and technology: Towards a common framework for privacy and ethical assessment], p. 8, http://www.prescient-project.eu/prescient/inhalte/download/PRESCIENT-D1---final.pdf (last accessed on 12 February 2018). See also Rachel Finn, David Wright and Michael Friedewald, "Seven types of privacy", in Serge Gutwirth, Ronald Leenes, Paul De Hert et al., European data protection: coming of age?, Springer, Dordrecht, 2012, pp. 3-32.

[31] Ibid., p. 13, referring to Daniel J. Solove, "Conceptualizing Privacy" California Law Review, Vol. 90, 2002, p. 1087 and to Beate Rössler, The Value of Privacy, Polity Press: Cambridge, 2005, p 86.

[32] See for example, in the context of ambiant intelligence, Antoinette Rouvroy, "Privacy, Data Protection, and the Unprecedented Challenges of Ambient Intelligence", in Studies in Ethics, Law and Technology, Volume 2, Issue 1, 2008, Article 3, p. 25, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1013984 (last accessed on 12 February 2018), who identifies five aspects of privacy (spatial, informational, emotional, relational and communicational privacy).

[33] Ahti Saarenpää, Legal privacy, Lefis series 5, PUZ/LEFIS, 2008, op. cit., p. 27 et seq.

[34] Pierre Kayser, La protection de la vie privée par le droit, PU d'Aix-Marseille/Economica, 3rd ed., 1995, p. 12. On the secrecy of privacy, see also M. Rudinsky, Civil Human Rights in Russia: Modern Problems of Theory and Practice, Transaction Publishers, 2008, IBSN 978-0-7658-0391-7.

[35] See Estelle De Marco, L'anonymat sur Internet et le droit, thesis, Montpellier 1, 2005, ANRT (ISBN : 978-2-7295-6899-3 ; Ref. : 05MON10067), n°s 41, 107, 109, 114, 122, 135, 137, 147, 162, 171-172, 332.

[36] Translated from French. Pierre Kayser, La protection de la vie privée par le droit, op. cit. p. 11; see also Estelle De Marco, L'anonymat sur Internet et le droit, op. cit. p.99 et seq.

[37] Pierre Kayser, op. cit., p. 344 and p. 12.

[38] Pierre Kayser, op. cit., p. 12. See also Estelle De Marco, L'anonymat sur Internet et le droit, op. cit. n° 133 et seq.

[39] See the French Supreme Court decision: Cass. soc., 22 Jan. 1992, Bull. civ. V, n° 30.

[40] See for instance Emmanuel Dreyer, "Le respect de la vie privée, objet d'un droit fundamental", Com. com. élec., n° 5, May 2005, I, 18.

[41] See for ex. Virginie Peltier, Le secret des correspondances, PU d'Aix-Marseille, 1999, p. 99 : "the tranquillity in which the action of correspondence takes place determines the [existence of the] freedom [to correspond]" (translated from French: "c'est la quiétude dans laquelle se déroule l'acte de correspondance qui détermine la liberté"); see also Estelle De Marco, L'anonymat sur Internet et le droit, op. cit. n° 147-148.

[42] On this issue see for example Amitai Etzioni, The limits of privacy, Basic Groups, 1999, notably p. 4.

[43] Unless prohibited by law, the right to privacy includes the right to choose to not benefit from this protection. In this sense see for ex. Ruth E. Gavinson, "Privacy and the limits of law", The Yale Law Journal, Vol. 89, n° 3 (Jan. 1980), pp. 421-471, http://www.jstor.org/stable/795891 or http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2060957 (last accessed on 24 February 2018), p. 428: the author refers to Edward Shils who argues that any privacy limitation which is controlled by the individual does not constitute a loss of privacy : "Privacy exists where the persons whose actions engender or become the objects of information retain possession of that information, and any flow outward of that in-formation from the persons to whom it refers (and who share it where more than one person is involved) occurs on the initiative of its possessors". A similar theory is developed by Adam D Moore, Privacy Rights: Moral and Legal Foundations, Pennsylvania State University press, 2010: "Privacy may be understood as the right to control access to and use of physical items, like bodies and houses, and information, like medical and financial facts" (p. 5); see also Charles Fried, "who understands privacy as control over information" according to Daniel J. Solove, Understanding privacy, Harvard University Press, 2008, quotation p. 35.

[44] Mats G. Hansson, The Private Sphere: An Emotional Territory and Its Agent, Springer, 2008, p. 3.

[45] Emmanuel Dreyer, "Le respect de la vie privée, objet d'un droit fondamental", Com. com. élec., n° 5, May 2005, I, 18.

[46] See for example Ruth E. Gavinson, "Privacy and the limits of law", The Yale Law Journal, Vol. 89, n° 3 (Jan. 1980), pp. 421-471, http://www.jstor.org/stable/795891 or http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2060957 (URLs last accessed on 12 May 2017); Mats G. Hansson, The Private Sphere: An Emotional Territory and Its Agent", Springer, 2007, p. 2 et seq.

[47] See for instance Emmanuel Dreyer, op. cit.

[48] See for instance Florence Deboissy, "La divulgation d'une information patrimoniale", D. 2000, chron. p. 26: "The right to respect for private life is completely directed against others. Its object must therefore be defined in relation to third parties" (translated from French); José Duclos, L'opposabilité - Essai d'une théorie générale, Thesis, LGDJ, 1984, n° 177. See also Ruth E Gavinson, "Privacy and the limits of law", op. cit.: "Our interest in privacy, I argue, is related to our concern over our accessibility to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others' attention" (p. 423); "The desire not to preempt our inquiry about the value of privacy by adopting a value-laden concept at the outset is sufficient to justify viewing privacy as a situation of an individual vis-a-vis others, or as a condition of life" (p. 425).

[49] On the legitimacy criterion, see for instance Florence Deboissy, "La divulgation d'une information patrimoniale", D. 2000, chron. p. 267: "The debate is (.) about the legitimacy of the control of the information, which special characteristic is to be personal, that is to say representative of a personality. Moreover, such a conception of private life allows forestalling the classical criticism of the theory of rights in the personality, that is to say the confusion between object and subject of law. Indeed, each individual has a prerogative not on himself but on an object that is outside of himself, the information" (translated from French). On the coexistence of freedoms and personal data in the content of private life, see for instance Ahti Saarenpäa, "Perspectives on privacy", available at http://lefis.unizar.es/images/documents/outcomes/lefis_series/lefis_series_5/capitulo1.pdf p. 21: "when privacy is mentioned, we have to determine in each case whether we are talking about privacy as it relates to information and the processing of data or privacy more broadly in the sense of an individual's right to be left alone" (last accessed on 12 February 2018).

[50] See Estelle De Marco, Comparative study between Directive 95/46/EC & the GDPR including their relations to fundamental rights, March 2018, Deliverable D2.10, INFORM project (INtroduction of the data protection reFORM to the judicial system), JUST-JTRA-EJTR-AG-2016, GA n° 763866, available at https://www.inthemis.fr/ressources/INFORM_D2.10_Comparative_analysis_GDPR_Dir9546EC.pdf, Section 2.3.2.

[51] See for example Ruth E. Gavinson, "Privacy and the limits of law", op. cit., pp. 2 et seq.

[52] On this issue see for example Amitai Etzioni, The limits of privacy, Basic Groups, 1999, notably p. 4.

[53] The defence of several public interests and third parties' rights are generally the objectives that enable the limitation of conditional rights according to the ECHR.

[54] Unless prohibited by law, the right to privacy includes the right to choose to not benefit from this protection. In this sense see for ex. Ruth E. Gavinson, "Privacy and the limits of law", op. cit.,p. 428. In relation to the fact that the person' expectations of privacy might be decisive in order to identify if an element of private life will or not be protected from certain kinds of interferences, see ECtHR, 3rd Sect., 25 September 2001, PG and J.H. v. The United Kingdom, appl. n° 44787/98, §57: "There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor".

[55] Mats G. Hansson, The Private Sphere: An Emotional Territory and Its Agent, Springer, 2008, p. 3.

[56] See for instance Florence Deboissy, "La divulgation d'une information patrimoniale", D. 2000, chron. p. 26: "The right to respect for private life is completely directed against others. Its object must therefore be defined in relation to third parties" (translated from French); José Duclos, L'opposabilité - Essai d'une théorie générale, Thesis, LGDJ, 1984, n° 177. See also Ruth E Gavinson, "Privacy and the limits of law", op. cit.: "Our interest in privacy, I argue, is related to our concern over our accessibility to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others' attention" (p. 423); "The desire not to preempt our inquiry about the value of privacy by adopting a value-laden concept at the outset is sufficient to justify viewing privacy as a situation of an individual vis-a-vis others, or as a condition of life" (p. 425).

[57] See footnote n°49.

[58] Prof. Pierre Kayser itself (who defines privacy according the first and the third approaches proposed above) shows that the apparent indecision of the French court of cassation in relation with the content of private life is due to the fact that the court does not characterise the privacy limitation according to the private nature of the concerned element of life, but does characterise it according to the severity of the limitation, and, in other words, according to the legitimacy of the limitation brought to the personal sphere of an individual by a third party: Pierre Kayser, La protection de la vie privée par le droit, PU d'Aix-Marseille/Economica, 3rd ed., 1995, p. 350.

[59] ECtHR, Rotaru v. Romania, appl. n°28341/95, §43.

[60] Translated from French, ECtHR, 3rd Sect., Haralambie v. Romania, 27 October 2009 (final: 27/01/2010), appl. n°21737/03, §77.

[61] Samuel D. Warren and Louis D. Brandeis, "The right to privacy", Harvard Law Review, vol. IV, 15 Dec. 1890, n°5. See our first definition of privacy at the beginning of Section 2.2.1 above.

[62] See Estelle De Marco, Comparative study between Directive 95/46/EC & the GDPR including their relations to fundamental rights, op. cit., Section 2.3.

[63] Without explicit authorisation (from law or the concerned person) to interfere with the sphere of privacy of another person, third parties legitimacy will depend on what belongs to their own sphere of "freedom", subject to (generally civil) liability in case of fault or abuse of right. The latter are generally assessed in the light of what it is common to do or to not do in certain circumstances and of what it is admitted in terms of being at a certain place at a certain moment, or of behaving in a certain manner in certain circumstances, or even of what should or not contribute to a debate of public interest. On this discussion see Estelle De Marco in Estelle De Marco et al., MANDOLA Deliverable D2.2 - Identification and analysis of the legal and ethical framework, version 2.2.4 of 12 July 2017, MANDOLA project (Monitoring ANd Detecting OnLine hAte speech) - GA n° JUST/2014/RRAC/AG/HATE/6652, http://mandola-project.eu/publications, Section 4.1.2.5.2.

[64] Indeed, the necessity and the proportionality tests take account of the importance of the opposed right or value. See Estelle De Marco, Comparative study between Directive 95/46/EC & the GDPR including their relations to fundamental rights, op. cit., Section 2.3.2.


 

 


Inthemis - Montpellier Optimum Centre - 450, rue Baden Powell - 34000 Montpellier Données à caractère personnel Informations légales © Inthemis