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Personal Data Protection Decisions of European Court of Human Rights -5

Decisions about “Collection, Storage and Use of Personal Data in the Context of Particular Fields”


The European Court of Human Rights (“Court”) refers to the following two principles found in the European Convention on Human Rights (“Convention”) while making an assessment about collection, storage and use of personal data in the context of particular fields such as video surveillance, criminal justice, social insurance proceedings and tax information: Right to Respect for Private and Family Life.

Article 8 of the Convention under the title of “Right to Respect for Private and Family Life”, provides that everyone has the right to respect for his private and family life, his home, and his correspondence. The Convention held that there shall be no interference by a public authority with the exercise of this right except such as under the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The protection of personal data is of paramount importance so that a person can freely enjoy the right to respect for his private and family life guaranteed by Article 8 of the above-mentioned Convention. Namely, the right to respect for one’s private and family life and the protection of personal data go hand in hand. For this reason, appropriate safeguards should be provided in the domestic law of each country regarding any impediment to the use of the rights protected by this article. In this respect, the Court evaluates whether there is a violation of rights within the framework of the above-mentioned principle in its decisions within the scope of this issue.

In this article, concerning collection, storage and use of personal data in the context of different fields include video surveillance, criminal justice, social insurance proceedings and tax information, Antović and Mirković v. Montenegro, Perry v. United Kingdom, Vukota-Bojic v. Switzerland, L.B. v. Hungary (No. 36345/16) decisions adjudicated by ECHR will be summarized.


1. Antović and Mirković v. Montenegro


This case concerned an invasion of privacy complaint by two professors at the University of Montenegro’s School of Mathematics after video surveillance had been installed in areas where they taught. They stated that they had had no effective control over the information collected and that the surveillance had been unlawful. The domestic courts rejected a compensation claim, however, finding that the question of private life had not been at issue as the auditoriums where the applicants taught were public areas.

Although the Government submitted an argument that the case was inadmissible as there was no privacy issue had been at stake as the area under surveillance had been a public, working area, the Court dismissed this argument. In this regard, the Court particularly noted that it had previously found that private life might include professional activities and considered that was also the case with the applicants. Therefore, according to the Court, Article 8 was applicable. On the merits of the case, the Court then found that the camera surveillance had amounted to an interference with the applicants’ right to privacy and that the evidence showed that that surveillance had violated the provisions of domestic law. Indeed, the domestic courts had never even considered any legal justification for the surveillance because they had decided from the outset that there had been no invasion of privacy. Because of these reasons, in this decision, the Court held that there had been a violation of Article 8 of the Convention, finding that the camera surveillance had not been in accordance with the law.

You may access the Decision by this link; Antović and Mirković v. Montenegro


2. Perry v. United Kingdom


The applicant was arrested in connection with a series of armed robberies of mini-cab drivers and released pending an identification parade. When he failed to attend that and several further identification parades, the police requested permission to video him covertly. The applicant complained that the police had covertly videotaped him for identification purposes and used the videotape in the prosecution against him.

The Court observed that there had been no indication that the applicant had had any expectation that footage would be taken of him in the police station for use in a video identification procedure and, potentially, as evidence prejudicial to his defense at trial. That ploy adopted by the police had gone beyond the normal use of this type of camera and amounted to an interference with the applicant’s right to respect for his private life. The interference was also unlawful as the police had failed to comply with the procedures laid down in the relevant law, such as the fact that they had not obtained the applicant’s consent or informed him that the tape was being made; neither had they informed him of his rights in that respect. For these reasons the Court held that there had been a violation of Article 8 of the Convention.

You may access the Decision by this link; Perry v. United Kingdom


3. Vukota-Bojic v. Switzerland


The applicant had been involved in a road traffic accident, and subsequently requested a disability pension. Following a dispute with her insurer on the amount of disability pension and years of litigation later, her insurer requested that she undergo a fresh medical examination, in order to establish additional evidence about her condition. When she refused, the insurer hired private investigators to conduct secret surveillance of her. The evidence that they obtained was used in subsequent court proceedings, which resulted in a reduction of the applicant’s benefits. She complained that the surveillance had been in breach of her right to respect for private life, and that it should not have been admitted in the proceedings.

The Court found that the insurer’s actions engaged state liability under the Convention, since the respondent insurance company was regarded as a public authority under Swiss law. It also held that the secret surveillance ordered had interfered with the applicant’s private life, even though it had been carried out in public places, since the investigators had collected and stored data in a systematic way and had used it for a specific purpose. Furthermore, the surveillance had not been prescribed by law, since provisions of Swiss law on which it had been based were insufficiently precise and in particular, they had failed to regulate with clarity when and for how long surveillance could be conducted, and how data obtained by surveillance should be stored and accessed. For these reasons, the Court held that there had been a violation of Article 8 of the Convention.

In addition to the violation of Article 8 of the Convention, the Court also evaluated whether there had been a violation of Article 6 (right to a fair trial) of the Convention. According to the Article 6 of the Convention; in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. In this respect, the Court further found that the use of the surveillance evidence in the applicant’s case against her insurer had not made the proceedings unfair and therefore held that there had been no violation of Article 6 of the Convention. Moreover, the Court particularly noted that the applicant had been given a fair opportunity to challenge the evidence obtained by the surveillance and that the Swiss court had given a reasoned decisions as to why it should be admitted.

You may access the Decision by this link; Vukota-Bojic v. Switzerland


4. L.B. v. Hungary (No. 36345/16) (Pending Applications)


This case concerns the tax authorities’ publishing of the applicant’s personal data on the Internet for failure to pay his taxes. The applicant alleges that the publication of his name and other details on the Tax Authority’s website for his failure to comply with his tax obligations was not necessary in a democratic society and infringed his right to private life. He submits that the main reason behind the Hungarian legislative policy of making the data available was public shaming.

In the circumstances of the present case, the Chamber considered, in particular, that making the information in question public could not be considered a serious intrusion into the applicant’s personal sphere. Therefore, it found that making his personal data public had not placed a substantially greater burden on his private life than had been necessary to further the State’s legitimate interest. For these reasons, the Court held in its Chamber judgment of 12 January 2021, by five votes to two, that there had been no violation of Article 8 of the Convention.

On 31 May 2021 the Grand Chamber Panel accepted the applicant’s request that the case be referred to the Grand Chamber.

On 3 November 2021, the Grand Chamber held a hearing in the case.

You may access the Decision by this link; L.B. v. Hungary (No. 36345/16)


Conclusion


As a result, it is seen in the above-mentioned decisions that the Court takes the 8th Article of the Convention as a basis when evaluating the concrete facts regarding collection, storage and use of personal data. While making this assessment, the Court has taken into account the jurisprudence of the countries in this regard and the principle of proportionality.


Author: Bilge Derinbay, Hande Ülker Pehlivan


Contact: bilge.derinbay@nsn-law.com