Privacy in the Digital Age: Implications of the European Court of Human Rights’ Interpretation of Privacy as Personality Right for the UN Human Rights Committee

초록

The right to privacy faces unprecedented threats in the digital era. Despite its foundational position, the right to privacy was conceived in a pre-digital age, leading to significant challenges in addressing modern infringements. Whereas the Council of Europe and the European Court of Human Rights (ECtHR) have taken proactive measures to strengthen privacy protections, the UN Human Rights Committee has been passive and has yet to develop a comprehensive approach towards these challenges. This article analyzes whether the ECtHR’s approach is viable for export and a concept which the Human Rights Committee could adopt. To examine this question, this article conducts a case study on the ECtHR’s first ruling in a case involving facial recognition technology where a violation of Article 8 of the European Convention on Human Rights was found. The case study focuses on the ECtHR’s interpretation of privacy as a personality right, how it was key for both the establishment of the interference and the finding of a violation in this precedent case, and how this interpretation is especially useful for generating new rights and freedoms in the digital age. This approach is then compared with the Human Rights Committee’s jurisprudence on Article 17 of the International Covenant on Civil and Political Rights to assess its viability for export. Although this analysis concludes with the assessment that the institutionalization of privacy as a personality right would present significant challenges and may be incompatible in the global setting that the Human Rights Committee presides over, this article concludes by discussing possible pathways and concepts that could be learned from the outcomes of the ECtHR’s approach. In particular, alternative ways for protecting the right to privacy in the digital age could be directly addressed and developed in the Committee’s state review procedure, contributing to the development of stronger international privacy protections.

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