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Think of that sigh of relief you let out when you arrive home, shut the door behind you and flop on the couch. Finally, you’re alone. But imagine fearing you were being spied on in your own home. Knowing that someone was watching your every move, reading your messages, listening in on your phone calls would be a gross intrusion into your private life.
While this might sound like the plot of a dystopian novel, we don’t need to turn to fiction to imagine what it would be like to live under mass surveillance. For four decades until 1990, the Ministry for State Security, more commonly known as the Stasi, kept files on ordinary members of the population in East Germany with friends and family spying on one another.
Privacy is a fundamental right and is considered essential to live a life of dignity and individuality. By creating a sphere separate from others where we can make autonomous decisions, the right to privacy gives us the space to be ourselves and exercise personal freedom. It gives us control over our personal and sensitive information, because we decide what details about ourselves we will disclose and limit how much information we share with others. It allows us to exchange information freely, think and reach our own conclusions about society’s big questions - like how they are being run, who our leaders should be, what laws and morals we should live by.
The right to privacy, however, is not an absolute right and can be limited under certain circumstances. For example, according to the EU Charter of Fundamental Rights limitations can be justified in the interest of national security, public safety and prevention of crime amongst other criteria - but only if the limitations are proportionate to the risk.
Origins of the right to privacy
Notions of privacy first surfaced in philosophical discussions. Aristotle articulated the discussion between the private sphere, referring to personal and family life, and the public sphere, the social space where political debate takes place. This emphasis on the home as the arena of personal freedom was formalised in English common law during the 17th century, when Sir Edward Coken declared "the house of every one is to him as his castle".
The belief that privacy is a human right was first articulated in 1890 in an article written by two young lawyers from the United States, Samuel D. Warren and Louis. D. Brandeis. Describing the media’s increasing intrusions into the personal lives of individuals, they described the right to privacy as “the right to be left alone” and argued that its legal basis could be found in existing case law.
While most countries acknowledge that the right to privacy exists, there is no universally accepted definition of privacy and the legal protections it offers. This allows for a flexible interpretation of what the right to privacy entails under a given set of circumstances, which is heavily influenced by historical developments.
The importance and legitimacy of privacy as a legal principle was solidified during the 20th century. Article 12 of the Universal Declaration of Human Rights, adopted in 1948, is interpreted as guaranteeing a right to privacy. The rise of technology during this period also resulted in the concept of privacy evolving to incorporate personal information. Increasingly, businesses, public services and daily communication were digitised as owning a computer and mobile phone became the norm. This increased reliance on digital tools made our personal records more widely accessible, and more vulnerable to being misused.
As a result, the legal definition of privacy, which had mostly focused on protecting citizens’ private communications from state interference, was outdated. In 1967, in the groundbreaking text “Privacy and Freedom”, Alan Westin broadened the definition of privacy by defining it as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”
European courts also played a formative role expanding the legal definition of privacy and protecting citizens from state interference through its interpretation of the right to privacy. To give some examples, in 1978 the European Court of Human Rights (ECtHR) recognised that the use of secret surveillance technology must balance national security interests against. Six years later, in 1984, the ECtHR found that the state listening in on a person’s telephone conversations without legal authorization constituted a violation of their right to privacy. This decision helped establish the principle that the state’s interception of private communications through covert measures requires a legal basis and adequate safeguards.
Why is privacy important?
Privacy is essential for democracy to function properly because it creates the space for citizens to come together and debate important social issues, without censoring themselves. It allows us to think and speak freely, so we can form our own opinions and beliefs, even if they are against the status quo and critical of the government. This makes it possible to build a political movement to address problems in society, like protesting to ban the use of fossil fuels or end gender violence. Minorities and at-risk groups who face discrimination or are targeted by the government rely on the anonymity of online spaces to seek help or find community support.
However, the opposite happens if we believe that we are being monitored. If we’re worried the government is listening to our conversations, we might be too afraid to say what we really think, especially if it is controversial. This creates a chilling effect, causing people to self-censor or only voice opinions in line with the status quo. This stops the flow of information and leads to uniform thinking, which makes it harder to protest decisions by the government we disagree with.
In Europe, in 2022 the Pegasus scandal broke when journalists uncovered that Hungary, Poland, Spain and Greece used spyware to carry out surveillance. A report by the European Parliament revealed that the Pegasus spyware was used systematically to surveil citizens who criticised the government, such as journalists, activists, or opposition politicians.
When journalists’ communication is monitored, it deters sources who wish to remain anonymous from speaking to the media because they are worried about negative consequences, such as losing their job. As a result of this chilling effect, illegal activities or threats to public safety can go unreported, which his harmful to society as a whole. This makes it easier for unscrupulous politicians or corporations to continue their dirty work, without facing any consequences. Similarly, when activists and civil society organisations are being tracked, it makes it harder for them to expose corruption and hold governments accountable.
What privacy laws exist in different countries?
Typically, national privacy laws form a nexus with international law to provide a legal framework protecting the right to privacy. The right to privacy can be located in international law, such as Article 12 of the UNHCR, Article 8 of the European Convention on Human Rights and Article 7 of the European Charter of Fundamental Rights. These offer basic protection such as privacy within the home and privacy of correspondence.
In the U.S., the word privacy isn’t explicitly mentioned in the Constitution of the United States. However, via court case rulings, the right to privacy has been found to be implicit in other constitutional protections. This has been used to justify decisions in a number of cases affecting civil liberties. For example, the First, Third, Fourth, and Ninth Amendments also were recognised as implying a right to privacy in the case of Griswold v Connecticut in 1965, which served as the legal basis for a married couple’s right to use contraception.
In Ireland, the right to privacy was forged under similar circumstances. In the famous case of McGee v The Attorney General, in which a married woman contested the ban on contraception, the right to privacy was established as one of the implied rights of Article 40.3.1 of the Irish Constitution.
How does the growing presence of social media affect the right to privacy?
Discussions about privacy have gained momentum in response to historical developments which threaten to disturb the sanctity of our private lives. While the importance of privacy remains the same, the threats to our privacy are ever-changing and heavily tethered to the growing presence of technology in our lives. Our digital devices provide a window into our private lives and leave us more vulnerable to breaches of privacy. Social media channels have normalised sharing intimate details about our personal lives on the World Wide Web, creating a separate virtual identity that exists in cyberspace. How do we define privacy in an era when we live chronically online?
Even when we make personal details about ourselves public, we still own the content we post online and are entitled to determine who can access it using privacy controls. Yet many of us don’t know what personal data is being collected and for what purpose. Even when we give consent, Big Tech uses sneaky tactics to trick users into unknowingly agreeing to allow their data to be shared with third parties, without properly understanding its implications on their privacy.
Our personal information is also vulnerable to data breaches. When private information from our profile is shared to third parties in ways we did not consent to, this breaches our right to privacy. For example, following a Twitter hack in July 2022, 200 million user email addresses were shared on the dark web, including email addresses obtained from anonymous Twitter profiles. As this information wasn’t publicly available, this constitutes a violation of the right to privacy among other breaches.
Similarly, we would expect our direct messages to remain private. However, proposals by the European Commission to fight online child sexual abuse threaten our right to privacy. The proposed regulation includes a provision to scan the content of messages before they are encrypted and sent to identify child sexual abuse material. While the underlying intention is laudable, it would only open the door for authoritarian governments to spy on their citizens without effectively protecting children.
How can the right to privacy be strengthened?
When we understand the role privacy plays in our daily lives, we can take the necessary steps to protect it. As this article discusses, many of today’s most pressing breaches of privacy arise from how we use our personal devices, such as our smartphones and laptops. This technology is sophisticated and evolving at a rapid rate, so many of us struggle to understand its impact on our rights. Corporations and the state take advantage of the general population’s knowledge gap. They use deceptive tactics and jargon to get us to consent to our personal data being used in ways that violate our privacy.
This is why Liberties focuses on educating the public on the right to privacy. There are many tools available to protect our privacy, but first people need to know that they exist and secondly, how to use them. If we know as much about our phones as they do about us, we are empowered to object to practices which violate our right to privacy and harm society.
Strengthening the laws and regulations that protect our privacy is also a vital step. Through our advocacy work, Liberties has pushed the EU to bring in strong laws to protect privacy from Big Tech. For example, the Digital Services Act has strengthened our right to privacy by banning the use of dark patterns which trick us into giving consent and forcing online platforms to make it easier for users to stop surveillance advertising.
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