Privacy rights as human rights: No limits'

Abstract

The concept of privacy has often been criticised for its vagueness. However, its notorious ?open texture?2 is also its strength: thanks to the inherent vagueness of the concept, privacy ? as a human right ? has been able to maintain its capacity to remedy emerging limits to law's regulating function in response to profound political, social and economic changes, and enormous technological progress. Take for example the case?law regarding the European Convention on Human Rights (hereinafter, the ECHR or the Convention). The rise of modern technology with its sophisticated devices for surveillance and information storage urged a heightened sensitivity to intrusions upon personality rights and informational privacy. The European Court of Human Rights (hereinafter, the ECtHR or the Court) reacted by broadening its interpretation of ?private life?, protected by Article 8 of the ECHR, so as to include these new forms of interference. When the secularisation of society and the ensuing increase in moral freedom of the individual encouraged claims of decisional freedom under the label of private life, these also met with success when tested before the Court. It stipulated that privacy rights protect free choice in sexual relationships3 and ensure legal recognition of one's sex change.4 The Court even found that the right to choose the circumstances of one's own death could be said to fall under the scope of ?private life?.5 Open texture and the judicial interpretation necessitated by it, were indeed the driving forces behind the development of the right to be left alone into a right to control over personal information and to live life according to one's own choice.6 Thus, privacy rights as human rights were able to fill in the gaps where national privacy laws had failed to regulate, and they stimulated new national legislation. This does not mean, however, that there are no limits to privacy rights as human rights. The features of open texture and the ensuing necessity of judicial interpretation can, and have in some cases, compromise(d) another function of privacy rights, their most important function as human rights: the protective, power? critical function.7 My aim in this chapter will therefore be, first, to explore how judges' implicit views on the judicial interpretation of open textured legal concepts affect these protective limits and, second, to offer pathways for a remedy to those limits. To begin with, a study of judicial interpretations of privacy rights under Article 8 ECHR will be undertaken, showing the limits to the Convention's protection of privacy rights. The next section will argue that the limits to Article 8's protective capacity can, at least partly, be attributed to the Court's minimalist practice of interpretation (section 2), which corresponds to a positivist perspective on human rights (section 3). Ways in which a change in philosophical perspective might be able to remedy the protective limits of human rights law will therefore be explored. 8 An alternative, constructivist perspective on human rights, in the neo? Kantian tradition of authors like Rawls, Habermas, and Dworkin, will be proposed and its general features outlined (section 4). Finally, I will try to show how the constructivist perspective allows for more generous, power?critical judicial interpretations of the privacy rights protected by the Convention and how this would influence the concrete outcome of certain cases (section 5). © 2009 Springer-Verlag Berlin Heidelberg.