Exploring the non-absolute nature of the right to data protection

In two recent judgements, the Court of Justice of the European Union stated that ‘The right to the protection of personal data is not, however, an absolute right, but must be considered in relation to its function in society’ (Eifert, para 48). This paper considers the ‘non-absolute’ nature of the right to data protection. Being a relatively new right, the boundaries of this right in the Charter are still somewhat unexplored. This paper considers five aspects that can be seen as setting boundaries to the otherwise absolute nature of the right to data protection: (a) consideration of the function of the right to data protection in society; (b) positive delimitations of the right that come from the formulation of the right (Article 8) in the Charter; (c) limitations on the right provided for in Article 52 of the Charter; (d) close connections with Article 7 of the Charter and Article 8 ECHR; and (e) the detailed provisions in current data protection secondary legislation and the future data protection regulation framework. Based on the reflections on each of these boundary-setting aspects, the paper argues that in spite of occasional vagueness and conflicting approaches of each of the aspects, understanding of the right to data protection has evolved since its first formulation in the Charter. There is a subtle and gradual distancing from the initial understanding of the close relationship with the right to private and family life. This gradual distancing is a positive development as the two have different foundations, scope and purposes. Yet it is only when both are taken together that the shared common objective of providing effective protection to citizens' personal and family life can be achieved.     

搜查与隐私权保护——加拿大宪法与美国宪法第4修正案之比较

<加拿大权利与自由宪章>第8条赋予了公民反对不合理的搜查和扣押的权利.与美国宪法第4修正案的发展历程类似,经由加拿大最高法院的判例解释,<宪章>第8条确立了隐私权的宪法保护.基于对美国宪法判例的批判和借鉴,<宪章>第8条下的隐私权在判断标准、保护范围方面体现了本国特色.第8条下隐私权具备的丰富内涵,不仅得益于加拿大最高法院确立的隐私权旨在促进的诸项基本价值,也与加拿大较为宽泛的非法证据排除规则有关.     

The Reasonable Expectation of Privacy and the Criminal Suspect

In In re JR38, the Supreme Court unanimously dismissed an appeal from a 14 year‐old boy who argued that the dissemination of his image, taken whilst he was participating in sectarian rioting, to local newspapers, violated his rights under Article 8 of the European Convention on Human Rights (ECHR). However, the Court was divided on whether or not the measures taken by the police engaged the applicant's Article 8(1) rights at all. This case raises fundamental questions as to the scope of private life in the context of criminal investigations, and the place of the European Court of Human Rights’ ‘reasonable expectation of privacy’ test in determining whether Article 8(1) of the ECHR is engaged. This case comment subjects the majority's interpretation of Article 8(1) to critical scrutiny, concluding that this interpretation may unduly restrict the scope of Article 8 protection for those subject to criminal investigations.     

The choice of child delivery is a European human right

In a judgment of 14 December 2010, in the case of Madam Ternovszky v. Hungary, the European Court of Human Rights has considered that a State should provide an adequate regulatory scheme concerning the right to choose in matters of child delivery (at home or in a hospital). In the context of homebirth, regarded as a matter of personal choice of the mother, this implies that the mother is entitled to a legal and institutional environment that enables her choice. This contribution stresses in which sense the regulatory schemes in the Member States Belgium, Germany, the Netherlands, France and the UK concerning the choice of child delivery are in accordance with Article 8 ECHR, the right to respect for the private life. Do the Member States provide the legal certainty to a mother that the midwife can legally assist a homebirth? Or are restrictions made in interests of public health?     

从财产权保障视角论我国的宪法财产权条款

宪法财产权条款是一国宪法确立私有财产权宪法保障地位的规范依据。我国现行《宪法》第13条规定是我国宪法上的财产权条款,具有重要的规范意义。但我国宪法财产权条款采不完善的＂保障＋剥夺＂二层结构,因而应予修正,改采完善的＂保障＋限制＋剥夺＂三层结构。一国宪法财产权条款所保障的财产范围是十分广泛的,一切具财产价值的私法上的权利和公法上的权利都在其内,具财产价值的期待性权利乃至存在合法性瑕疵的财产也可以有条件地包括其内。宪法财产权条款为一国宪法上的财产权提供双重保障机制,即个别保障与制度保障、存续保障与价值保障,我国宪法财产权条款在此方面有很大的改善空间。     

个人信息权的宪法(学)证成——基于对区分保护论和支配权论的反思

《个人信息保护法》最终纳入“根据宪法”条款,表征着个人信息保护法律体系在底层逻辑上的更动。民法学上权利与利益的区分保护原理,难以适用于整个合宪性法秩序。应将个人信息权确立为宪法位阶的基本权利,并以基本权利作为针对国家的主观防御权和辐射一切法领域的客观价值秩序的原理,协调个人信息保护的私法机制和公法机制。通过对人权条款笼罩下的通信权和人格尊严条款的解释,可以在学理上证立“基本权利束”性质的个人信息权。但其具体保护则应分别归入不同基本权利条款,作出区分化、差异化的多层次构造。个人信息保护的支配权思维有其局限,告知同意模式的式微是重要表现。应将个人信息权的规范目标调整为人格的自由发展,指向免于他人的人格干预。从支配权到人格发展权的思维转换,有助于规制对已收集信息的不当利用、破除“信息茧房”、缓和个人信息保护与利用之间的紧张,以及在“个人—平台—国家”的三方关系中有效保护个人的自决,同时为数据产业保留发展空间。     

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

In Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.     

私有财产权与法律改革--1978-2003中国法律改革史考察

中国1978年至2003年的法律改革是围绕着确立和保护私有财产权来进行的.私法领域的改革确立了私法财产权,公法领域的改革确立了公法财产权.私法财产权和公法财产权的结合构成了完整意义上的私有财产权制度.2004年通过的宪法第22条修正案同时规定了私法财产权和公法财产权,是对中国25年法律改革的概括和总结.     

Facial recognition technology,democracy and human rights

On 4 July 2023, the Third Section of the European Court of Human Rights (ECtHR) delivered the first judgment on the compatibility of facial recognition technology with human rights in Glukhin v. Russia. The case concerned the use of facial recognition technology (FRT) against Mr Glukhin following his solo demonstration in the Moscow underground. The Court unanimously found a violation of Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR). Regarding FRT, the Court concluded that the use of highly intrusive technology is incompatible with the ideals and values of a democratic society governed by the rule of law. This case note analyses the judgment and shows its relevance in the current regulatory debate on Artificial Intelligence (AI) systems in Europe. Notwithstanding the importance of this decision, we argue that the Court has left crucial questions unanswered.     

Private prosecution in Singapore: understanding locus standi and measures in place to minimise abuse

In Singapore, as is the case with other commonwealth countries, the general rule is that once any offence has been committed, it is for the state to prosecute the alleged offender. This explains why Article 35(8) of the Constitution provides that ‘[t]he Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence’. Article 35(8) is reinforced by section 11 of the Criminal Procedure Code, which provides that ‘[t]he Attorney-General shall be the Public Prosecutor and shall have the control and direction of criminal prosecutions and proceedings under this Code or any other written law’. However, as is the case with other commonwealth countries, the public prosecutor in Singapore does not have an exclusive right to prosecute. In some circumstances other government agencies or private individuals may institute and have instituted prosecutions. The purpose of this article is to discuss the issues of locus standi to institute a private prosecution and the measures in place in Singapore to minimise abusing the right to institute a private prosecution. In discussing these issues, the author, where necessary, compares the Singapore position with that of other commonwealth jurisdictions and makes recommendations on how legislation could be amended in Singapore to address some of the challenges.     

Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights under the European Convention on Human Rights

In October 2013, the European Court of Human Rights in Delfi AS v Estonia upheld a decision of the Estonian Supreme Court to impose liability on the owners of an internet news portal for defamatory comments which had been posted on their website by anonymous third parties. This note suggests that the decision is important in the context of publications with a ‘public interest’ element to them, because it appears to afford more protection to the right to reputation (deriving from the Article 8 right to privacy) and less to freedom of expression than was formerly the case. It is further argued that the Court's emphasis on the positive obligation of states to protect this right to reputation may mean that the existing English law in this area, including, potentially section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.     

通信权的宪法释义与审查框架--兼与杜强强、王锴、秦小建教授商榷

在"法院调取通话记录""交警查手机"等实践争议引导下,学者们借助基本权利限制的"保护范围—限制—限制的合宪性论证"的审查框架,推进了通信权的宪法释义。但将通话记录排除出通信权的保护范围,并不能有效解决实践难题,且因为过早窄化保护范围而会影响基本权利的保护效果。诉诸隐私权或者个人信息权的方案亦难以成立。应认识到《宪法》第40条存在因制宪者预见不足而产生的宪法漏洞。如果将"检查通信"理解为"示例性规定",则《宪法》第40条容有对通信权限制的其他可能性。在"通信内容"和"非内容的通信信息"分层构造下,可以建立起既能回应生活事实和实践争议,又能落实宪法严格保护目标的教义学体系和审查框架。基本权利个论的研究,有助于反思基本权利保护范围的"宽界定"或"窄界定",以及法律保留体系的普适性等基本权利总论问题。     

Incompatibility of the Digital Economy Act 2010 subscriber appeal process provisions with Article 6 of the ECHR

Through case-law research, this paper critically assesses the compatibility of the Digital Economy Act 2010 (DEA) subscriber appeal process provisions (Section 13 of the DEA) with Article 6 of the European Convention on Human Rights (ECHR). Drawing on the European Court of Human Rights (ECtHR) case-law, Ofcom's Initial Obligations Code (the Code), and the DEA judicial review decision, namely, BT PLC and Talk Talk PLC v Secretary of State for Business Innovation and Skills and others, this paper focuses on the three Strasbourg Court principles of equality of arms, admissibility of evidence, and presumption of innocence, in an effort to determine whether Section 13 of the DEA infringes them, and whether this constitutes a breach of a subscriber's right to a fair trial under Article 6 of the ECHR. The paper examines these three ECtHR principles. It contrasts such principles with the Code's provisions, and considers the compatibility of Section 13 of the DEA with Article 6 of the ECHR. It concludes that the DEA subscriber appeal process provisions do indeed infringe these principles, thus constituting a violation of subscribers' right to a fair trial. It also recommends that the UK government start taking seriously human rights in general, and Article 6 of the ECHR in particular.     

Abortion in Northern Ireland: Has the Rubicon Been Crossed?

On 7 June 2018, the Supreme Court delivered their long anticipated ruling on whether the abortion laws in Northern Ireland are compatible with the European Convention on Human Rights. Although the case was dismissed on procedural grounds, a majority of the court held that, obiter, the current Northern Irish law was incompatible with the right to respect for private and family life, protected by Article 8 ECHR, “insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality”. This Supreme Court decision, seen alongside the May 2018 Irish referendum liberalising abortion, and the 5 June 2018 Parliamentary debate seeking to liberalise abortion laws in Northern Ireland and the rest of the UK, places renewed focus upon the abortion laws of Northern Ireland and Great Britain, which suggests that the ‘halfway house’ of the Abortion Act 1967 Act finally be close to being reformed to hand the decision of abortion to women themselves.     

Trade marks are 'possessions'--but applications are not (yet)

In its decision of 11 October 2005 the European Court of HumanRights (ECHR) ruled that a registered trade mark was a ‘possession’within the meaning of Article 1 of the First Protocol to theEuropean Convention on Human Rights. The ECHR failed, however,to extend this level of protection to the particular trade markapplication at issue, thereby leaving the protection of intellectualproperty rights as fundamental rights somewhat incomplete forthe time being.     

自然资源国家所有权三层结构说

宪法上规定的自然资源国家所有权不是专属于公法的所有权概念。它包含三层结构：第一层结构是私法权能。在这一层面上,它与物权法上的所有权无异。第二层结构是公法权能。其主要包括国家对于自然资源的立法权、管理权和收益分配权。第三层结构是宪法义务。国家应当为全体人民的利益行使其私法权能和公法权能。公共信托理论是描述国家作为自然资源所有人的宪法义务的法律理论,应当引入中国,或者对中国宪法第9条作公共信托理论式的解释,确立国家与人民在自然资源国家所有权结构中的地位。在中国的现实中,自然资源国家所有权最为薄弱的层面是其宪法义务。 “自然资源人民基金”的模式和尝试对中国有借鉴意义。宪法规定的自然资源所有权具有“不完全规范”的特质,直接转化为物权法上的物权存在困难。在目前宪法控制制度尚不健全的情况下,民法解释学可以发挥控制自然资源国家所有权肆意扩张和扭曲的准宪法功能。     

The Social Cost of an Outdated Law: Article 16 of the Greek Constitution

Article 16 of the Greek Constitution stipulates that higher education is provided free in state institutions, and that private universities are prohibited. The paper digs into the historical origins of such provisions and discusses the reasons why, in spite of national outcry, the article has survived with no revision since it first appeared several decades ago. Closely linked to Article 16, is the fact Greece has a world record of students studying abroad relative to its population. Standard economic analysis is used to assess the net social cost to the country of maintaining Article 16. Links are made to the quality of university education provided by the state institutions, the foreign exchange drain to universities abroad, the lack of the benefits of competition by not allowing foreign universities to set up campuses in Greece, as well as the benefits of having foreign-educated graduates returning to Greece. The above efficiency arguments are complemented by distributional considerations on who has benefited, or lost, by the free state provision of university education.     

Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act

This article examines the development of a remedy for unauthorised publication of personal information that has resulted from the fusion of breach of confidence with the limited 'horizontal' application of Article 8 of the ECHR via the Human Rights Act. Its analysis of Strasbourg and domestic post-HRA case law reveals the extent to which confidence has in some areas been radically transformed into a privacy right in all but name; however it also seeks to expose the analytical and normative tensions that arise in the judgments between the values of confidentiality and privacy as overlapping but not coterminous concepts, due in part to the failure to resolve decisively the horizontal effect conundrum. This judicial ambivalence towards the reception of privacy as a legal right into English law may, it will argue, also be seen in the prevailing judicial approach to the resolution of the conflict between privacy and expression interests which, it will suggest, is both normatively and structurally inadequate.     

Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK

The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well‐established case law of the Court on counter‐terrorism and non‐refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non‐refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.     

国家环境保护义务的溯源与展开

"因雾霾状告环保局第一案"暴露出环境保护领域法律判断与社会认同的矛盾,需要对政府环境保护职责之根源——国家环境保护义务问题予以理论回应。国家环境保护义务的证立,不能简单根据保障基本权利之国家义务体系进行演绎推理,而应从国家任务的现实需要出发进行归纳推理。环境基本国策是国家环境保护义务的宪法规范形态,是对所有国家权力构成约束的"国家目标条款"。国家环境保护义务在内涵上包括:现状保持义务、危险防御义务、风险预防义务。"立法+行政"是我国实现国家环境保护义务的基本路径。现行宪法第26条和第9条第2款共同表述了环境基本国策,并具有"国家目标条款"的规范效力。现阶段我国环境保护领域的国家任务,应围绕新修订的环境保护法的规定,从现状保持、危险防御、风险预防三个方面展开,共同推进国家环境保护义务的实现。