Legitimate expectations of privacy; the concept of privacy and private life

The right to a private life, or referred to as the right to privacy, is a fundamental right that has been protected in both international and European legislation since the very beginning,

53 BAILEY, Jane and KERR, Ian; The implications of digital rights management for privacy and freedom of expression; Journal of Information, Communication and Ethics in Society; Vol. 2 Issue 2; 2004; pg. 90.

54 Emphasis added.

27 but it has also been nationally protected amongst Member States, having a direct relation with the right to data protection.

The following table shows the mentioning of this fundamental right amongst EU adopted legislation:

Table 2: Right to a private life and the corresponding articles and writing within EU adopted legislation

The European Union Agency for Fundamental Rights and Council of Europe has defended that, despite the unquestionable improvements and advancements to society that technology has brought, it has also created new challenges and risks to the borders of our right to a private life⁵⁵.

55 Handbook on European data protection law, European Union Agency for Fundamental Rights and Council

of Europe, Publications Office of the European Union, 2018, pg. 18; “(…) These developments have brought

Chapter III – Legitimate Interest and the Media

28 This fundamental right can have, perhaps arguably, a greater impact in one’s life than the right to data protection. This is the case due to its goal as it strives to protect “the autonomy and human dignity of individuals, by granting them a personal sphere in which they can freely develop their personalities, think and shape their opinions”⁵⁶. These serve as a base for other fundamental rights and freedoms, including the freedom of expression. However, this right has inherent a prohibition of interference, unless situations of public interest duly justified.

The scope of this right falls when the private life, or a private interest, has been compromised, including situations where information that becomes available or was accessed that could damage the perception regarding the individual, whether it be personally or professionally damaged.

The compliance list of topics mentioned in subchapter 1 of Chapter II also applies to this Article.

This could perfectly well be about what people choose to share online, on how they have certain expectations of privacy despite choosing themselves what to post or not in the internet. However the focus of this subchapter is the expectation of privacy innate to the society, as a basic concept of protection of private life.

Recital 41 of the GDPR proposal states that “Personal data which are, by their nature, particularly sensitive and vulnerable in relation to fundamental rights or privacy, deserve specific protection. Such data should not be processed, unless the data subject gives his explicit consent. However, derogations from this prohibition should be explicitly provided for in respect of specific needs, in particular where the processing is carries out in the course of legitimate activities by certain associations or foundations the purpose of which is to permit the exercise of fundamental freedoms”⁵⁷.

For this right to be interference with, and for Art.8 of the ECHR to be triggered, first it needs to be assessed whether someone’s private life or private interest has been tampered

considerable advantages to individuals and society, improving quality of life, efficiency and productivity. At the same time, they present new risks to the right to respect for private life”.

56 Ibid, pg. 19.

57 Rec. 41 GDPR.

29 with. The ECtHR has provided a notion of private life that is broad enough to comprise some situations of both professional and public lives.

The idea of privacy has been imbedded in history, but it has not been static, Louis Brandeis and Samuel D. Warren first mentioned relating it to the ‘right to be left alone’⁵⁸. Since then,

“(…) it has been largely accepted that in its most general form, privacy protection is a legal way of drawing a line at how far society or other individual subjects may intrude into a person’s own affairs”⁵⁹.

Privacy is seen as a focal part of human dignity, inherent to all, one should be able to conduct their affairs without unwanted and unrequested intrusions, except situations where it is reasonable and necessary to do so. Privacy is what allows one to make progress in their private lives, it is an expression of our individual freedoms, only bound by the letter of the law and consent. However, the lines between privacy and private lives of certain people, i.e. celebrities, and what is shown to the public is getting thinner every day.

There is often the conception that data protection and privacy correlate to the same concept, which cannot really be fought against at first glance, however when one delves further into the application scopes of both of them they are quite different.

The Guide on Article 8 of the Convention – Right to respect for private and family life⁶⁰, in Chapter II, Section E, point 29, enunciates that “the court has further classified this requirement, stating that the notion of “necessity” for the purpose of Art. 8 means that the interference must correspond to a pressing social need, and, in particular, must remain proportionate to the legitimate aim pursued”⁶¹.

Article 8 of the ECHR aims at protecting someone’s private life as it is a ‘space’ where they develop their own personalities and their relationships with others, this does not mean that interactions in public cannot fall within the scope of their private life, matters, especially the latter, that are substantially more difficult when one is known to the public,

58 BRANDEIS, Louis and WARREN, Samuel D.; The right to privacy; Harvard Law Review, Nr. 4; 1890;

Pgs 193 to 220.

59 FERRETTI, Federico; Data Protection and the Legitimate Interest of Data Controllers: Much Ado about Nothing or the Winter of Rights?; Common Law Market Review, Nr. 51; 2014; pg. 5.

60 Available on https://www.echr.coe.int/documents/guide_art_8_eng.pdf .

61 Ibid, pg. 13.

Chapter III – Legitimate Interest and the Media

30 even consubstantiating the right to a “private social life”, in line with the ECHR Case of Bărbulescu v. Romania⁶².

Despite being known to the public, they are still protected by the intrinsic rights given by the ECHR, they are human beings, they might just have a profession or status that makes headlines and might have something that could be of public interest.

On this matter, Hallinan et al⁶³ highlights the hesitancy of the ECtHR in using the legitimate expectations of privacy based in two factors: one, that everyone should have a legitimate expectation of privacy and in which instances that expectation might be breached, meaning that all legislation adopted must still respect the minimum acknowledgment of privacy, and second, “(…) that when private organisations, in particular the press, violate citizens' privacy, the question is not whether their privacy expectations were reasonable, but whether their expectations were legitimate. Thus, even when royalty or celebrities are structurally harassed by the press and could not reasonably' expect to have any privacy in the public domain, the Court will grant them a claim to privacy when their expectations were 'legitimate’. (…) There are three requirements for legitimately curtailing the right to privacy under the ECHR: the interference must have a legal basis, it must serve a public interest and it must be necessary in a democratic society. The second test relates to the requirement of having a legal basis, the third test to the requirement of being necessary in a democratic society. The necessity requirement is where the Court also deploys the concepts of proportionality and subsidiarity”⁶⁴.

This means that despite that, they most likely, and should, have a legitimate expectation of privacy. This translates to the possibility of publishing certain photographs, possibly taken in public spaces, that might share intimate details of one’s lives and consequently hinder their abilities to form relationships and preserve the own traits of their personality that they have built in privacy.

The right to respect for private life can be summed into a prohibition of interference, and as is not an absolute right it can be interfered with in very specific instances.

62 Available on https://www.echr.coe.int/documents/press_q_a_barbulescu_eng.pdf.

63In HALLINAN, Dara; LEENES, Ronald and DE HERT, Paul; Data Protection and Privacy – Enforcing rights in a changing world; Hart Publishing; 2022.

64 Ibid., pg. 72.

31 Outrageously, there is no absolute settlement on what the scope of private life actually is.