13 April 2011

Right to privacy

This post will be shorter, because I became aware that I had written in the opening text of this section about human rights that I would publish thirteen post on this theme, but I noticed already that I joined the first two themes together; this post will not be long but I will not join it with another one.

As in the previous themes, the text of the Universal Declaration will be my basis here. It thinks of the right to privacy but it mentions it only with one provision: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.“ It is a relatively brief provision and it is therefore necessary to develop it.

Most constitutions ensure the right to preserving messages transferred by mail and telephone. Because valid texts of many constitutions were created before decades, they often ensure also privacy of messages transferred by telegraph, a device being used only seldom today, on the contrary, the constitutions say nothing about privacy of messages transferred by computer networks and other modern methods of communication though these ones allow greater risk of violation of privacy; on the other hand, some constitutions ensure only privacy of messages transferred by mail or by telegraph. I enlarged therefore the provision about privacy of sent messages by a mention about computer networks, I omitted the telegraph a added the words “or by any other method” to the provision. Besides, I added also other words according to the constitution of the Czech Republic, namely the right to protection of secrecy of the messages kept in the privacy. It maybe can seem a superfluous provision because I wrote about protection against willful intrusion into the dwelling in the previous post. But in spite of that, it has its meaning because the right to privacy of kept data ought to be the same as privacy of the transferred data, regardless of the fact that the private information need not to be stored only in dwellings. The European states' constitutions (the Charter of Fundamental Rights not explicitly) ensure not only the right to secrecy of transferred data, they mention on the other hand also a possibility to break this right for significant reasons. It is therefore obvious that necessity to investigate crimes and illegal action requires a right to break secrecy of private data from time to time and it has to be included in the European federal constitution. A possibility to intervene in private data must therefore be restricted to cases beforehand given by the law and determined by the judge's permission. I enlarged further this letter of the section of the right to privacy by a sentence that is present (as I know) in no constitution and no international treaty knows it: everybody ought to have a right to secure his preserved or transferred messages in every available way in order that nobody violates their privacy. It means above all a possibility to encode data carriers. If everybody has the right to protect his private data, he must also automatically have a possibility to practically enforce it. If the citizens are allowed to lock their houses, they must be allowed also to technically secure secrecy of their data. The citizens cannot be urged, on whatever pretence (the fight against terrorism and against pedophilia are very popular pretexts today), to keep their data unsecured on account of possible investigation from the side of the public authority (or whoever else). By the way, necessity to provide one's private data unwillingly could at least in some cases be inconsistent with the provision that nobody can be forced to give evidence against himself, as I wrote about it in the previous post.

The provision of the letter (c) is based as the only one on the provisions of the Charter of Fundamental Rights and refers to data collected about the individual. Various data about us are known not only to the relatives, neighbours and friends, but also to several public bodies and private firms. These institutions have thus some power over the individual and abuse of private data from their side would have weighty consequences for him. That is the reason why collecting data about the individual has to be restricted and controlled. All the words of the Charter of Fundamental Rights about collecting personal data for certain purposes and with permission of the respective person must be contained in the text of the European federal constitution as well as the provision that everybody has the right to access to data that were collected about him and the provision that he has the right to rectification of wrong data. But if the Charter of Fundamental Rights speaks about rectification of wrong data, a right to removing data acquired without justification should there be too and therefore I added it to the text. I consider as necessary to specially mention genetic informations. They are relatively new informations, until recently not being used and international conventions think not of them; in spite of that, danger of their abuse is extensive. On that ground the text of the European federal constitutions should restrict collection of genetic informations about persons only to limited and urgent cases and should demand their exceptionally strict protection.

The Charter of Fundamental Rights does not expressly know a right to inviolability of dwelling, although it speaks about respect of home. Those however are too indefinite words and therefore I added a separate provision about the right to privacy of dwelling as it is known to constitutions of the European states. That provision contains a brief sentence that the dwelling is inviolable, from a pattern of the European states' constitutions also a possibility to do domiciliary searches, but only in that cases when the court orders it. I adopted a respective provision of the Belgian constitution because it is the most appropriate in my opinion (it speaks also about the method how to carry out the domiciliary searches).