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Summary Handbook on European data protection
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Handbook on European data protection lawChapter 1 – Context and background of European data
protection law
1.1 The right to data protection
- A right to protection of an individuals private sphere against intrusion from others was laid
down in an international instrument firstly in the United Nations Universal Declaration of
Human Rights. This UDHR influenced the development of other human rights instruments in
Europe:
European Convention on Human Rights (ECHR)
The Council of Europe adopted the ECHR in 1950 and it entered into force in 1953. States
have an international obligation to comply with the ECHR. To ensure that the contracting
parties observe their obligations under the ECHR, the European Court of Human Rights
(ECtHR) was set up in Strasbourg in 1959. An applicant does not need to be a national of one
of the member states. The right to protection of personal data forms part of art. 8 ECHR. The
ECtHR has clarified that art. 8 ECHR not only obliges states to refrain from any actions which
might violate this Convention, but that they are in certain circumstances also under positive
obligations to secure effective respect for private and family life.
Council of Europe Convention 108 (C108)
With the emerging of IT in the 1960’s, a growing need developed for more detailed rules to
safeguard individuals by protecting their data. In the mid 1970’s, the Committee of Ministers of
the Council of Europe adopted various resolutions, referring to art. 8 ECHR. In 1981, the
Convention for the protection of individuals with regard to the automatic processing of personal
data was opened for signatures. It was and is the only legally binding international instrument
in the data protection field. It applies to all data processing carried out by both the public and
private sector. In addition, it outlaws the processing of sensitive data. The Convention also
enshrines the individual’s right to know that information is stored on him/her, and, if necessary,
to have it corrected. All EU member states have ratified the Convention. It is open for
accession of non-member states of the CoE.
European Union data protection law
EU law is composed of treaties and secondary EU law. The principle instrument regarding
data protection is the Data Protection Directive (DPD). It was adopted in 1995. The free flow of
data could not be realised unless the member states could rely on a uniform high level of data
protection. Member states thus have very limited freedom to manoeuvre when implementing
the DPD. It is designed to give substance to the principle of the right to privacy as stated in
C108. The DPD however, draws on the possibility of adding instruments of protection. The
territorial scope extends beyond the 28 member states, including also non EU-member states
that are part of the EEA like Iceland, Liechtenstein and Norway.
The Charter on Fundamental Rights of the European Union
To grant protection to individuals, the EU brought fundamental rights into the so called general
principles of European law. In an effort to make citizens feel closer to the EU, it proclaimed the
Charter of Fundamental rights (hereafter: Charter). The rights are divided into 6 sections:
dignity, freedom, equality, solidarity, citizen’s rights an justice. The Charter became legally
binding as EU primary law with the coming into force of the Lisbon Treaty in 2009 (art.
6(1)TEU). It guarantees the respect for private and family life (art. 7 Charter) and the right to
data protection (art. 8 Charter). Art. 8 must be seen as embodying pre-existing EU data
protection law. It also refers to data protection principles in art. 8(2).
- The CJEU in Luxembourg has jurisdiction to determine whether a member state has fulfilled
its obligations. The material scope of the DPD is limited to matters of internal market,
corresponding to EU primary law. An additional legal instrument was needed in order to
establish data protection for the processing of data by institutions of the EU: the EU
Institutions Data Protection Regulation. Often, more detailed provisions are needed in order
, to achieve the necessary clarity in balancing other legitimate interests. Two examples are
the Directive on privacy and electronic communications and the Data retention directive.
1.2 Balancing rights
- Art. 8 Charter does not contain an absolute right! It must be considered in relation to its
function
in society. Art. 52(1) thus accepts limitations on the exercise of rights as long as these
limitations
are provided for by law, respect the essence of those rights and freedoms and, subject to the
principle of proportionality, are necessary and genuinely meet objectives of general interests
recognised by the EU or the need to protect the rights and freedoms of others.
Freedom of expression
This is protected by art. 11 Charter, which corresponds with art. 10 ECHR. Following art. 52(3)
Charter, the meaning and scope of those rights shall be the same as those laid down by the
said Convention. So the limitations which may be lawfully imposed on art. 11 Charter may not
extend those provided for in art. 10(2) ECHR. The relationship between the protection of
personal data and the freedom of expression is governed by art. 9 DPD: member states must
provide a number of derogations/limitations in relation to the protection of data. These
derogations must be solely for journalistic purposes or artistic or literary expression.
CJEU 16-12-2008 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy
Markkinapörssi and Satamedia lawfully obtained tax data of 12 million natural persons in order to
allow mobile phone users to receive tax data relating to other natural persons. The Court first
concluded that these activities were ‘processing of personal data’ (art. 3(1) DPD). Then it went on to
construe art. 9 DPD. It said that notions relating to freedom of expression, like journalism, should be
interpreted broadly. Derogations and limitations must apply only insofar as is strictly necessary.
Journalistic activities are classified as such if ‘their object is disclosure to the public of information,
opinions or ideas, irrespective of the medium used to transmit them. These activities are not limited
to media undertakings but also for profit-making purposes. The Court left it to the national court to
determine whether this was the case.
Concerning the reconciliation of the right to data protection within the right of freedom of
expression, the ECtHR has issued several landmark judgments.
ECtHR 07-07-2012 Axel Springer AG v. Germany
The applicant wanted to publish an article about the arrest and conviction of a well-known actor, but
the domestic court forbid this. The ECtHR said that this violated art. 10 ECHR:
- event of general interest? Yes, it’s a public judicial fact
- public figure? Yes, he was a well-known actor
- how is the information obtained and was it reliable? It was provided by the public prosecutor’s office
and the accuracy was not in dispute
Thus the publication restriction was not reasonably proportionate to the legitimate aim of protecting
the applicant’s private life. There was a violation of art. 10 ECHR.
ECtHR 07-02-2012 Von Hannover v. Germany
Princess Caroline of Monaco was refused an injunction against the publication of a photo of her and
her husband taken during a skiing holiday. It was accompanied by an article about prince Rainier’s
poor health. The Court said that the publisher’s right to freedom of expression against the applicant’s
right to respect their private life have been carefully balanced. The characterisation of prince
Rainier’s illness as an event of contemporary society could not be considered unreasonable.
One of the crucial criteria is whether or not the expression contributes to a debate of general
public interest.
, ECtHR 10-05-2011 Mosley v. the UK
A national newspaper published intimate pictures of Mosley. He alleged a violation of art. 8 ECHR
because he had been unable to seek an injunction before publication of these photos due to the
absence of any pre-notification requirement. Particular care is needed when examining constraints
which might operate as a form of private censorship. Because pre-notification has a chilling effect
and because there are doubts regarding its effectiveness and the wide margin of appreciation in that
area, the ECtHR concluded that the existence of a legally binding pre-notification was not required
under art. 8 ECHR.
ECtHR 25-11-2008 Biriuk v. Lithuania
A newspaper published an article stating that Biriuk was HIV-positive. That was allegedly confirmed
by the medics at the local hospital. The ECtHR did not deem the article to contribute to any debate of
general interest and said that the protection of medical data is of huge importance. Also, the medical
staff provided information in evident breach of their obligation to medical secrecy.
Access to documents
- Freedom of information (art. 11 Charter, art. 10 ECHR) protects the right not only to impart but
also to receive information. Under Council of Europe (hereafter: CoE) law, reference can be
made to the Convention on Access to Official Documents. Under EU law, this is guaranteed by
the Access to Documents Regulation. Art. 42 Charter and art. 15(3) TFEU extend this ‘to
documents of the institutions, bodies, offices and agencies of the Union, regardless of their
form’. This may come into conflict with the right to data protection if access to a document
would reveal others’ personal data. Thus balancing is needed!
CJEU 29-06-2010 European Commission v. Bavarian Lager
Bavarian Lager imports German beer into the UK, but encountered difficulties because British
legislation favoured national producers. In response to their complaint, the EC started proceedings
against the UK, which led to amending the provisions and aligning them with EU law. Bavarian Lager
asked for a copy of the minutes from the meeting with EU staff, British authorities and the branch
organisation. The EC agreed, but blanked out 5 names. Bavarian Lager asked again and eventually
brought an action before the Court of First Instance. This Court annulled the EC decision: the mere
entry of names did not constitute an undermining of private life.
The CJEU annulled this decision. It said that where a request based on the Access to documents
Regulation seeks to obtain access to documents including personal data, the provisions of the EU
Institutions Data Protection Regulation become applicable in their entirety. Because Bavarian Lager
did not provide any convincing arguments in order to demonstrate the necessity, the EC could not
weigh up the various interests. In the absence of consent of these 5 participants at the meeting, the
EC complied with its duty of openness by releasing a version with their names blanked out.
According to this judgment, interference with the right to data protection with respect to access
to documents needs a justified reason.
ECtHR 14-04-2009 Társaság a Szabadságjogokért v. Hungary
A human rights NGO requested access to information about a pending case. The Court refused,
even without consulting the member of parliament who brought the case before it. This on the ground
that complaints before it could be made available to outsiders only with the approval of the
complainant. The applicant acted as a ‘social watchdog’ and the ECtHR had consistently held that
the public had the right to receive information of general interest. The information sought by the
applicant was ‘ready and available’. In these circumstances, the state was obliged not to impede the
flow of information sought by the applicant. Thus there had been a violation of art. 10 ECHR.
Under EU law, the principle of transparency is firmly established. It enables citizens to
participate more closely.
CJEU 09-11-2010 Volker and Markus Schecke and Hartmut Eifert v. Land Hessen
The Court said, noting that the right to data protection is not absolute, that the publication required by
EU-legislation on a website naming the beneficiaries of 2 EU agricultural aid funds and the precise
amounts received constitutes an interference with their private life. Such interference with art. 7 and
8 Charter was provided for by law and met an objective of general interest. However, publication of
the names of natural persons who are beneficiaries and the exact amount received constituted a
disproportionate measure and was not justified (art. 51(1) Charter). The Court thus declared EU
legislation partly invalid.
Freedom of arts and sciences
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