Defining “Private Life” Under Article 8 of the European ..., Exams of Human Rights

Download Defining “Private Life” Under Article 8 of the European ... and more Exams Human Rights in PDF only on Docsity! Defining “Private Life” Under Article 8 of the European Convention on Human Rights by Referring to Reasonable Expectations of Privacy and Personal Choice H. TOMÁS GÓMEZ-AROSTEGUI* INTRODUCTION A Norwegian County has ruled that smoking in the workplace is a basic human right, rejecting a ban introduced in one town on municipal employees . . . . Since January 1, municipal employees in Levanger in central Norway had been banned from smoking during work hours, both on or off town property and even when they were on breaks, business trips abroad or traveling in their own cars on business. Three members of Levanger’s city council appealed the municipal by-law and regional officials found that the by-law violated citizens’ right to a private life, as defined by the European Convention on Human Rights . . . . The ruling came as the Scandinavian country prepares to impose a total ban on smoking in public places, including bars, restaurants and discos, on June 1 [2004].1 The above-noted news story highlights a problem that has plagued the institutions of the European Convention on Human Rights2 since its effective date in 1953: What subject matter should fall within the meaning of “private life” under Article 8 of the Convention so as to be protected from unjustified governmental interference? The European Court (and, previously, Commission)3 of Human Rights have failed, by certain commentators’ accounts, to provide sufficient guidance on the subject. To some, the “Commission’s practice concerning the meaning of private life has been distinguished neither by its clarity nor its discipline,”4 others have called Article 8 “elusive,”5 and yet others have * B.A. 1993, J.D. 1997, University of Southern California; LL.M. candidate 2004, University of Oslo, Norwegian Research Center for Computers and Law. 1 Smoking a Basic Human Right, Norwegian County Rules, Agence France Presse (14 Apr. 2004) (emphasis added) (obtained from the Westlaw periodical database on 10 July 2004). 2 The treaty is officially known as the Convention for the Protection of Human Rights and Fundamental Freedoms and it became effective on 3 September 1953. The Convention presently has 46 countries as contracting members. 3 The Commission was abolished in November 1998. 4 D.J. Harris, M. O’Boyle, and C. Warbrick, LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS p. 305 (1995) [hereinafter Harris]. Defining “Private Life” by Referring to Reasonable Page 2 of 40 Expectations of Privacy and Personal Choice simply remarked that the present state of affairs is due to the fact that defining “the notion of ‘privacy’ or ‘private life’ . . . is very hard to do.”6 Much of the criticism has stemmed from the fact that the Convention institutions have taken a case-by-case approach to defining private life, rather than providing a general or exhaustive definition of the phrase. Nevertheless, it can be gleaned from the case law that the European Court of Human Rights has been trying, particularly in the last seven years, to provide more guidance and perhaps even construct a general (albeit not exhaustive) definition. I have in mind here several recent decisions of the Court that have referred to a person’s reasonable expectations of privacy as the possible standard. This Paper will explore the development of this recent trend and propose the direction in which the Court should head in the years to come. Part I of this Paper introduces the reader to Article 8 of the Convention. I first discuss how the Court approaches an Article 8 complaint and then briefly describe the interpretive methods the Court employs in assessing it. I next discuss how the Convention institutions have gradually sculpted the meaning of private life on a case-by-case basis. The reader will learn that Strasbourg has essentially recognized two components of private life. The first is a privacy component that governs the traditional idea that some matters should be kept secret or free from publicity, whereas the second “concerns a sphere within which everyone can freely pursue the development and fulfillment of his personality,”7 which I refer to as the personal choice component. Part II discusses the emergence in 1997 of a “reasonable expectation of privacy” test in some of the Court’s opinions as a means for determining whether the privacy component of private life has been implicated. Five different opinions are discussed and critiqued, concluding with the Court’s most recent pronouncement on the issue in von Hannover v. Germany.8 I conclude that despite some early signs of trepidation (due, in my mind, to uncertainty on how to apply the test), the Court appears eager to pursue or at least explore reasonable expectations as the benchmark in future cases. Part III concludes that although the “reasonable expectation of privacy” test is only in its infancy at Strasbourg, the test provides a promising foundation for future analyses of whether private life is implicated. I propose that the test should be further refined and expanded to include not only analysis of privacy component claims, but personal choice claims as well. Private life cases should be analyzed with some species of the following principle: A public authority may not without proper justification interfere with or fail to respect matters in which a person has a reasonable expectation of privacy or personal choice. The remaining sections of Part III suggest how the Court should apply such a test. 5 Luke Clements, Nuala Mole, and Alan Simmons, EUROPEAN HUMAN RIGHTS: TAKING A CASE UNDER THE CONVENTION p. 176 (2d ed. 1999) [hereinafter Clements]. 6 J.G. Merrills and A.H. Robertson, HUMAN RIGHTS IN EUROPE p. 138 (4th ed. 2001). 7 Ursula Kilkelly, THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE p. 11 (2001). 8 No. 59320/00 (24 June 2004). H. Tomás Gómez-Arostegui Page 5 of 40 Candidate # 830001 holds true, however, if “customs, policies and practices vary considerably between contracting states.”18 Strasbourg also has ruled that there is “usually a wide margin of appreciation in questions of morals, in relation to the implementation of positive obligations, when there is a foreseeable danger to public safety and urgent measures are required[,] and when dealing with national security.”19 Conversely, “where Government policy in the form of criminal laws interferes with a particularly intimate aspect of an individual’s private life, the margin of appreciation left to the Government will be reduced in scope.”20 B. The Court’s Methods of Interpretation Also important to an understanding of this Paper are some of the interpretative methods the Court employs to inject meaning into words and phrases of the Convention. The most prominent of these principles may be grouped as follows: (1) the Vienna Convention principle of textual interpretation in light of object and purpose; (2) dynamic interpretation; and (3) autonomous interpretation. As with most treaties, the Court has stated that in interpreting the Convention it should first utilize the interpretative methods described in the Vienna Convention on the Law of Treaties.21 Therefore, words and phrases must be interpreted according to their ordinary meaning and in light of the object and purpose of the European Convention on Human Rights.22 Generally speaking, the object and purpose of the Convention is to “maintain and promote the ideals and values of a democratic society.”23 As will be demonstrated in Part I.C, this canon of interpretation has been used by the Court to define private life in a way that arguably exceeds its ordinary meaning.24 18 Id. at p. 8. 19 Iain Cameron, AN INTRODUCTION TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS pp. 96-97 (4th ed. 2002). 20 Hatton [GC], supra note 11, at ¶ 102. 21 See Golder v. UK, No. 4451/70[PC], ¶ 29, A-18, 1 EHRR 524 (21 Feb. 1975). 22 See Vienna Convention Art. 31. The Vienna Convention also states that terms may sometimes be interpreted by referring to an instrument’s legislative history or travaux préparatoires. See Vienna Convention Art. 32. However, the legislative history of the Convention on Human Rights provides no guidance whatsoever on how to define “private life.” See, e.g., Louise Doswald- Beck, The Meaning of the “Right to Respect for Private Life” Under the European Convention on Human Rights, 4 HUMAN RIGHTS L.J. 283, p. 286 (1983) (“[T]here is no discussion at all as to the meaning of private life.”); Jacques Velu, The European Convention on Human Rights and the Right to Respect for Private Life, the Home and Communications in PRIVACY AND HUMAN RIGHTS p. 15 (A.H. Robertson ed. 1973) (“Scrutiny of the travaux préparatoires on Article 8 of the Convention does not provide much material for interpretation.”). 23 Cruz Varas et al. v. Sweden, No. 15576/89[PC], ¶ 119, A-201, 14 EHRR 1 (7 June 1990); see also Ovey, supra note 9, at p. 37 (“The yardstick of democratic standards runs through the Convention and has proved to be an important source of inspiration in delimiting the requirements of the Convention.”). 24 See, e.g., P. van Dijk and G.J.H. van Hoof, THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS pp. 73-74 (3d ed. 1998) (“The emphasis placed on object and purpose of the Convention . . . has led the Court, on many occasions, to adopt a fairly progressive or activist approach.”) [hereinafter van Dijk]. Defining “Private Life” by Referring to Reasonable Page 6 of 40 Expectations of Privacy and Personal Choice It logically follows from the emphasis placed upon the object and purpose of the Convention, that terms in the Convention must be interpreted dynamically.25 That is to say, the Convention should be read as a living instrument, one where the meaning of terms may change over time depending on societal views. As was recently stated: The standards of the Convention are not regarded as static, but as reflective of social changes. This evolutive approach towards interpretation of the Convention implies that the Commission and the Court take into account contemporary realities and attitudes, not the situation prevailing at the time of the drafting of the Convention in 1949-1950.26 Judge Loucaides has noted that application of this canon “promises that new rights derived from the notion of ‘private life’ will continually be recognized whenever required by the conditions of social life.”27 (Indeed, the principle can arguably be seen in the Court’s decisions that acknowledge homosexuality and transsexuality as components of private life).28 Others have argued, however, that the Court should take care not to cross the fine line between “interpreting an existing right in dynamic fashion and creating new rights”29 out of whole cloth.30 The Court also is cognizant of a need to take an autonomous approach to interpreting certain provisions of the Convention. Some of the concepts and “terms used in this treaty are considered to have a special, autonomous meaning, which is independent from, and does not necessarily correspond to, the meaning which identical or similar terms may have in the 25 See Harris, supra note 4, at p. 7. 26 van Dijk, supra note 24, at pp. 77-78; see also Philip Leach, TAKING A CASE TO THE EUROPEAN COURT OF HUMAN RIGHTS p. 96 (2001) (“The Convention is seen as a ‘living instrument’ and therefore the role of the Court is to interpret the Convention in the light of present day conditions and situations, rather than to try to assess what was intended by the original drafters of the Convention in the late 1940s.”); Andrew Drzemczewski, THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE, HOME AND CORRESPONDENCE p. 17 (1984) (“[M]ore often than not-- especially with respect to Article 8--both the Commission and the Court have been prepared to interpret the [C]onvention’s provisions by emphasising the evolutive, dynamic and progressive elements of principles enshrined therein.”). 27 Loukis G. Loucaides, Personality and Privacy Under the European Convention on Human Rights in ESSAYS ON THE DEVELOPING LAW OF HUMAN RIGHTS p. 86 (1995). 28 See Part I.C infra. 29 Cameron, supra note 19, at p. 61. 30 See Heribert Golsong, Interpreting the European Convention on Human Rights Beyond the Confines of the Vienna Convention on the Law of Treaties? in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS pp. 151-161 (R. St. J. Macdonald, F. Matscher, and H. Petzold eds. 1993) (complaining that the Convention institutions have used the concepts of dynamic and autonomous interpretation to deviate wrongly from the intended meaning of the Convention); Deumeland v. Germany, No. 9384/81[PC], ¶ 24, A-100, 8 EHRR 448 (29 May 1986) (joint dissenting opinion) (“An evolutive interpretation allows variable and changing concepts already contained in the Convention to be construed in the light of modern-day conditions, but it does not allow entirely new concepts or spheres of application to be introduced into the Convention: that is a legislative function that belongs to the Member States of the Council of Europe.”). H. Tomás Gómez-Arostegui Page 7 of 40 Candidate # 830001 domestic law of the Contracting States.”31 The reason for maintaining the interpretive distance is simple. As Professor Cameron has explained, “[c]ertain terms used in the Convention must logically mean something different from the equivalent terms in national legal systems, as otherwise the Convention is simply a ratification of the existing state of national institutions and civil liberties.”32 Of course, this is not to say that every term must have a different meaning, but it gives the Court the wiggle room necessary to maintain its independence. Again, commentators have warned, however, that “this method must be used by the interpreter with great care, because otherwise he runs the risk of creating so-called autonomous concepts which do not have any foundation in the Convention system itself.”33 C. The Meaning of Private Life as Interpreted by Strasbourg Having covered the procedural aspects of the Court’s jurisprudence, I now turn to its substance. Over the years, the Court has refined and expanded its interpretation of the phrase “private life,” but it has not (until arguably recently)34 attempted a general definition. A review of the case law and academic literature demonstrates that the Court has created two main categories of protection within the rubric of private life: (1) those matters that come within the traditional meaning of privacy, i.e., matters that should be kept secret or free from publicity--labeled herein as the privacy component; and (2) those matters that involve a person’s personality or autonomy--labeled herein as the personal choice component. I briefly trace these developments in the next several paragraphs.35 There seems to be little doubt that the Convention organs have always understood private life to encompass the ordinary and traditional meaning of privacy. That is to say, that as a general principle, Strasbourg has always recognized that the right to private life means the right to “live, as far as one wishes, protected from publicity.”36 Nevertheless, as has been noted previously, the exact contours of this privacy component have been left for determination on a case-by-case basis. In that fashion, Strasbourg has over the years found the following matters (among others) to implicate the privacy component of Article 8: (1) a person’s HIV status;37 (2) a secret police register containing personal information about the 31 van Dijk, supra note 24, at p. 77. 32 Cameron, supra note 19, at p. 64. 33 F. Matscher, Methods of Interpretation of the Convention in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS p. 73 (R. St. J. Macdonald, F. Matscher, and H. Petzold eds. 1993). 34 See Part II infra regarding the emerging “reasonable expectation of privacy” test in the case law. 35 It is important to note that the Convention institutions do not expressly separate their analyses into these two categories. This is a construction, based on my reading of the cases, which I believe best compartmentalizes the rights. My reason for choosing the “personal choice” label in particular--as opposed to stating “personality,” as the Court has--will become apparent in Part III of this Paper. Suffice to say, that the proposal herein would be conceptually (and grammatically) unworkable with the “personality” label. 36 G. Cohen-Jonathan, Respect for Private and Family Life in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS p. 406 (R. St. J. Macdonald, F. Matscher, and H. Petzold eds. 1993), quoting X. v. Iceland, No. 6825/74, 5 DR 86 (18 May 1976). 37 See Z. v. Finland, No. 22009/93, ECHR 1997-I, 25 EHRR 371 (25 Feb. 1997) (applicant’s medical records with HIV status used in a criminal prosecution). Defining “Private Life” by Referring to Reasonable Page 10 of 40 Expectations of Privacy and Personal Choice The five judgments are discussed in chronological order. A. Halford v. The United Kingdom The phrase “reasonable expectation of privacy” first appeared in a Strasbourg opinion in 1997 in the case of Halford v. The United Kingdom.50 The applicant, Ms. Alison Halford, had worked in 1983 as an Assistant Chief Constable with the Merseyside police and was at the time the highest-ranking female police officer in the United Kingdom. Over the following seven years, Ms. Halford applied several times, unsuccessfully, for a promotion to the rank of Deputy Chief Constable. Feeling that the denials were based on a discriminatory motive, she brought a claim against the Chief Constable, among others, for gender discrimination. She also accused certain members of the Merseyside Police Authority of having launched a campaign against her in retaliation for her bringing the complaint.51 Most important to our analysis here, however, is the fact that Ms. Halford further alleged that “calls made from her home and her office telephones were intercepted for the purposes of obtaining information to use against her in the discrimination proceedings.”52 Because the Government conceded that Article 8 would cover home telephone interceptions, the Court undertook no applicability analysis in that regard.53 Instead, the fight over the applicability of Article 8 centered on the workplace interceptions. Ms. Halford argued that the calls she made from her office fell within the scope of private life and correspondence under Article 8(1). The Government countered, however, that those telephone calls fell outside the protection of Article 8 . . . because she could have had no reasonable expectation of privacy in relation to them. At the 50 No. 20605/92, ECHR 1997-III, 24 EHRR 523 (25 June 1997). However, the “reasonable expectation of privacy” test is often said to have originated in the United States Supreme Court’s 1967 decision in Katz v. United States, a case dealing with an individual’s right under the Fourth Amendment to the United States Constitution to be free from unreasonable government searches and seizures. 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Not unlike the Convention on Human Rights, the Fourth Amendment states that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Constitution Amend. IV. In Katz, the Supreme Court departed from earlier cases that focused on the presence of the items listed in the Amendment as demonstrating the applicability of the Amendment and held that those seeking to invoke the Amendment must instead show an actual and reasonable expectation of privacy in the place or object that the government has observed, searched or seized. See id. at pp. 348-359, 361. It also bears noting that several jurisdictions within the United States have also used the “reasonable expectation of privacy” test as an element of the tort of intrusion of privacy. See, e.g., Pearson v. Dodd, 410 F.2d 701, p. 704 (D.C. Cir. 1970); Shulman v. Group W productions, Inc., 18 Cal. 4th 200, pp. 208-210 (1998). I have found much of the literature that exists in the United States on these two subjects to be useful in preparing this Paper. 51 See Halford, supra note 50, at ¶¶ 9-12. 52 Id. at ¶ 17. 53 The Court ultimately found no violation of Article 8 with respect to the alleged home interceptions because there was insufficient evidence to suggest that the home tapping actually occurred. In other words, there was no interference. H. Tomás Gómez-Arostegui Page 11 of 40 Candidate # 830001 hearing before the Court, counsel for the Government expressed the view that an employer should in principle, without the prior knowledge of the employee, be able to monitor calls made by the latter on telephones provided by the employer.54 Although the Court ultimately disagreed with the Government’s conclusion that Article 8 had not been implicated, it did adopt the Government’s proposed “reasonable expectation of privacy” test. The Court began by noting that phone calls made from business premises can in certain circumstances be covered by private life and correspondence. The Court then went on to state: There is no evidence of any warning having been given to Ms Halford, as a user of the internal telecommunications system operated at the Merseyside police headquarters, that calls made on that system would be liable to interception. She would, the Court considers, have had a reasonable expectation of privacy for such calls, which expectation was moreover reinforced by a number of factors. As Assistant Chief Constable she had sole use of her office where there were two telephones, one of which was specifically designated for her private use. Furthermore, she had been given the assurance, in the response to a memorandum, that she could use her office telephones for the purposes of her sex-discrimination case . . . .55 Not surprisingly, the Court then held that the “conversations held by Ms Halford on her office telephones fell within the scope of the notion[] of ‘private life’ and ‘correspondence.’”56 Having found no proper justification for the interference, the Court concluded that a violation of Article 8 had occurred.57 The decision is remarkable, of course, for its first use of the “reasonable expectation of privacy” test. But it also highlights an issue that will be discussed in Part III.D of this Paper: Should the reasonable-expectations test be used to judge solely the issue of private life or should it also be used to judge all of the other rights contained in Article 8 (including home, family life and correspondence)?58 I raise this issue here because in Halford the Court (and Government, for that matter) seemed to sweep the applicability of both private life and correspondence under the rubric of reasonable expectations. There are two possible explanations for their imprecision. Perhaps it was intentional and, by melding private life and correspondence together in their analyses, the Government and the Court intended the reasonable-expectations test to govern the applicability of private life and correspondence. The imprecision may have been inadvertent, however, with the Court intending that reasonable expectations govern private life only, and that correspondence continue to be 54 Id. at ¶ 43 (emphasis added). 55 Id. at ¶ 45 (emphasis added). 56 Id. at ¶ 46. 57 See id. at ¶ 51. 58 See infra Part III.D. Defining “Private Life” by Referring to Reasonable Page 12 of 40 Expectations of Privacy and Personal Choice analyzed separately.59 In any event, as will be explained further along in this Paper, if the Court elects to adopt reasonable expectations as its benchmark in the future, it will have to describe clearly whether the test is intended to pertain solely to private life or whether (and how) it will be used with respect to the other rights in Article 8. B. P.G. & J.H. v. The United Kingdom It was not until four years later that the Court again mentioned the reasonable- expectations test, this time in P.G. & J.H. v. The United Kingdom,60 a case concerning, among other things, whether the police can covertly record a suspect’s voice in order to obtain a voice sample while the suspect is being detained at the police station. The P.G. & J.H. case began when the police received a tip that one of the applicants, P.G., and another person, B., were planning to rob a cash-collection van on or around 2 March 1995. In an effort to thwart the robbery, the police installed a covert listening device in a sofa in B.’s apartment. The police were particularly interested in using the surveillance information to attempt to identify an unknown third member of the conspiracy (later determined to be the second applicant in the case, J.H.). Over the next several days, the police recorded several conversations between B. and the other conspirators and photographed several persons going in and out of the apartment, including P.G. and J.H. But before the police could link the applicants (particularly J.H.) to the voices on the tapes, B. and the others discovered the bug. The men abandoned the apartment, and the robbery did not take place at the prescribed time.61 Soon thereafter, the police arrested the applicants for driving a stolen automobile. Both applicants refused to answer any questions or to provide the police with voice samples. So in order to obtain the speech samples they so desperately wanted, the police installed covert listening devices on the police officers that were present when the applicants were charged and in the applicants’ cells. The applicants were then recorded, without their knowledge or permission, during the charging procedure and while incarcerated.62 The evidence obtained permitted the police to match the applicants’ voices to the voices featured on the surveillance audiotapes.63 After being tried and convicted for conspiracy to commit armed robbery, largely by use of the tapes and voice samples at trial, the applicants’ complaint found its way to Strasbourg. The issue we are most concerned with here is the use of the covert listening devices at the 59 If this latter explanation is the more plausible, I query why the Court even discussed reasonable expectations in the first place given that the Court could have avoided the private-life issue altogether and instead relied solely on the notion of correspondence in order to reach the same result. See A. v. France, supra note 11, at ¶¶ 33-36 (holding that a telephone call constitutes correspondence under Article 8 regardless of whether its contents are of a private matter, and then finding it unnecessary to analyze the question under private life). 60 No. 44787/98, ECHR 2001-IX (25 Sept. 2001). 61 See id. at ¶¶ 8-14. 62 Some of the conversations recorded in the cells were between J.H. and his solicitor and were therefore not used against the applicants at trial. 63 See id. at ¶¶ 15-17. H. Tomás Gómez-Arostegui Page 15 of 40 Candidate # 830001 inclined to favor the other approach, primarily because I cannot imagine a situation where the Court would hold that private life has been implicated because information was processed even though the information related to matters in which no reasonable person could have an expectation of privacy. As I see it, data processing is a simply a factor to consider, among others, in determining whether an expectation was reasonable. It is thus unfortunate that the Court did not frame its conclusion within the rubric of reasonable expectations. Perhaps this is because the Court felt uncomfortable stating, given the public nature of people’s voices and the location where the voice samples were taken, that the applicants had a reasonable expectation of privacy in their voices. Yet the Court could have made such a statement had it recognized that expectations of privacy can be partial.75 Within the context of the reasonable-expectations test, it could be said that the applicants in P.G. & J.H had a reasonable, partial expectation of privacy in the sound of their voices. Although a reasonable person might expect their voice to be heard in normal conversation, one could nevertheless reasonably expect to retain at least some degree of privacy in that voice, perhaps expecting that at most only the people who are present (and whom the speaker is aware of) might contemporaneously hear and recognize their voice. A reasonable person under the circumstances would probably not foresee the sort of electronic recording and analysis (i.e., data processing) that occurred in P.G. & J.H. C. Peck v. The United Kingdom The Court next encountered the “reasonable expectation of privacy” issue in Peck v. The United Kingdom.76 The case involved the televising and publication of the aftermath of a person’s suicide attempt. The Court relied heavily on the reasoning of P.G. & J.H. and therefore also highlighted the importance of processing of information as an important factor in determining the applicability of Article 8. However, as with P.G. & J.H., it too can be read as continuing to endorse a reasonable-expectations approach. The applicant, Geoffrey Peck, was suffering from depression as a result of personal and family circumstances. One late night during August 1995, he walked alone to a central road junction in the center of the city of Brentwood and attempted suicide by cutting his wrists with a kitchen knife. He stayed at the junction for a time and leaned over a railing facing the traffic with the knife in his hand. Unbeknownst to Mr. Peck, however, was the fact that the city was contemporaneously observing and recording his actions through a camera mounted on the traffic island in front of the junction. Although the camera did not capture him actually slitting his wrists, it did show him at the junction in possession of the knife. Police arrived at the scene shortly thereafter, took the knife from Mr. Peck, and then gave him medical assistance. Ultimately, Mr. Peck was released and no charges were filed.77 75 This is an important point that I will come back to later in Part III.B infra. 76 No. 44647/98, ECHR 2003-I, 36 EHRR 719 (28 Jan. 2003). 77 See id. at ¶¶ 9-11. Defining “Private Life” by Referring to Reasonable Page 16 of 40 Expectations of Privacy and Personal Choice But the story does not end there. The city council issued a press release touting the fact that its camera surveillance system had helped prevent a “potentially dangerous situation.”78 The release specifically noted that an individual had been spotted with a knife in his hand, that he was clearly unhappy but not looking for trouble, that the police had been alerted, [and] that the individual had been disarmed and brought to the police station where he was questioned and given assistance for his problems.79 The press release also included two still photographs of Mr. Peck holding the knife (his face was not digitally masked) that were taken from the camera footage. The story and the photographs of Mr. Peck eventually made their way into local newspapers with the permission of the city and ultimately appeared, along with video footage of the event (also obtained by permission from the city), on a BBC television show called Crime Beat.80 Consequently, Mr. Peck complained to a number of domestic adjudicative bodies, alleging an unwarranted infringement of his privacy, but his claims were all rejected.81 Bringing his claims before the Court, Mr. Peck argued that the disclosure by the city of the relevant footage and the subsequent publication and broadcasting constituted a disproportionate interference with his right to respect for his private life in violation of Article 8. One of the principal issues in the case was whether, in light of the location of the activities and the circumstances of the filming, Mr. Peck’s private life had even been implicated. The U.K. government argued that it had not because Mr. Peck’s actions were allegedly already in the public domain. Specifically, the Government argued that the “[d]isclosure of those actions simply distributed a public event to a wider public and could not change the public quality of the applicant’s original conduct and render it more private.”82 Mr. Peck countered that his private life was involved because the relevant footage related to an attempted suicide and he was unaware that he was being filmed. The Court sided with Mr. Peck and found that private life had in fact been implicated. The Court began by quoting verbatim from the passage in P.G. & J.H. that discusses the “reasonable expectation of privacy” test. It then discussed factors that are important in determining whether public activities become private for purposes of Article 8 that, like P.G. & J.H., basically rely on whether and how the public activities are processed (again, a step consistent with the concept of partial expectations of privacy mentioned in my discussion of P.G. & J.H.): The monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual’s 78 Id. at ¶ 13. 79 Id. 80 Although the Crime Beat program masked Mr. Peck’s face, that masking was inadequate and many of Mr. Peck’s friends and family who saw the program recognized him. 81 See id. at ¶¶ 12-23. 82 Id. at ¶ 53. H. Tomás Gómez-Arostegui Page 17 of 40 Candidate # 830001 private life. On the other hand, the recording of the data and the systematic or permanent nature of the record may give rise to such considerations. . . . [¶] [Also important are whether the data] remain anonymous in that no names [are] noted down, . . . [whether] the personal data . . . [are] entered into a data-processing system . . . [and whether the data] [have] been made available to the general public or [will] be used for any other purpose.83 Analyzing the facts before it, the Court made much of the fact that the newspaper stories about the applicant were “distributed in the applicant’s locality to approximately 24,000 readers” and that the video footage was broadcast “locally to approximately 350,000 people and [on] the BBC broadcast nationally.”84 The Court then concluded that private life was involved because “the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation . . . and to a degree surpassing that which the applicant could possibly have foreseen when he walked in [the city on the date in question].”85 Despite its apparent emphasis on data processing, it seems to me (once again) that the Court is essentially stating that the disclosure of the footage invaded Mr. Peck’s reasonable expectation of privacy. A reasonable person might expect that what Mr. Peck did would be a private matter to a certain extent (visible, perhaps, only by people who happened to be passing by). However, one would not expect or foresee the sort of use and disclosure (i.e., data processing) that occurred. So although Mr. Peck cannot claim an absolute expectation of privacy, he can claim a partial one. Of course, it should go without saying that if Mr. Peck had known that a BBC television crew was filming his actions, he could not have reasonably expected that his actions would be private.86 D. Perry v. The United Kingdom Similar in facts and outcome to P.G. & J.H., was the Court’s next decision in Perry v. The United Kingdom,87 a case involving the covert videotaping of a suspect at a police station. There, the applicant was suspected of robbing several mini-cab drivers. The police 83 Id. at ¶¶ 59, 61. 84 Id. at ¶ 62. 85 Id. (emphasis added). 86 This is as good a place as any to raise a point regarding what different societies perceive are reasonable expectations. Whereas the European Court of Human Rights essentially found a reasonable expectation of privacy in Peck, I find it doubtful, based on my own non-scientific perception, that the result would be the same in the United States. Television viewers in the United States are bombarded with countless shows that use footage obtained from police and safety cameras. We have grown so accustomed to seeing people on camera in such a manner that I think most people would say that, given the openness of his activity, Mr. Peck could have had no reasonable expectation of privacy in his case (even a partial one), regardless of how widely the video was disseminated. 87 No. 63737/00, 39 EHRR 76 (17 July 2003). Defining “Private Life” by Referring to Reasonable Page 20 of 40 Expectations of Privacy and Personal Choice has a “legitimate expectation” of protection and respect for his or her private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant “would have had a reasonable expectation of privacy for such calls. [Citing Halford]. [¶] As regards photos, . . . the Commission [also] had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public.96 The Court then drew its conclusion, albeit with no analysis whatsoever, that “[i]n the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life”97 and that “she should, in the circumstances of the case, have had a ‘legitimate expectation’ of protection of her private life.”98 Notably, no mention was made of the data-processing test discussed in the three previous cases. The significance of the Court’s omission remains to be seen, but an argument can certainly be made that the opinion strengthens the view that reasonable expectations is the determinative test and data processing is but a factor to consider within the scope of that test. The Court spent the majority of its time discussing whether the Government was justified in its failure to provide Princess Caroline with a means (in Germany’s domestic law and court system) to stop the publications. The balance the Court sought to strike in this positive obligation case was the protection of private life against the freedom of expression. The Court stressed “that a fundamental distinction [must] be made between reporting facts-- even controversial ones--capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions.”99 The Court ultimately concluded that private life triumphed in this case because the photos at issue did not relate to Princess Caroline’s official functions but instead dealt exclusively with her private life.100 More was said about the reasonable-expectations test in the concurring opinions of Judges Barreto and Zupančič, both of whom doubted that all of the photographs should fall within the realm of private life. Judge Barreto stated that, in his view, “whenever a public figure has a ‘legitimate expectation’ of being safe from the media his or her right to private life prevails over the right to freedom of expression or the right to be informed.”101 He then parted ways with the majority in his application of the test: The majority attach importance, for example, to the fact that the photos at the Monte Carlo Beach Club had been taken secretly. I do 96 Id. at ¶¶ 50-52 (emphasis added). The Court appears to use the terms “reasonable expectation” and “legitimate expectation” interchangeably. 97 Id. at ¶ 53. 98 Id. at ¶ 78. 99 Id. at ¶ 63. 100 See id. at ¶ 64. 101 Id. (Barreto, J., concurring). H. Tomás Gómez-Arostegui Page 21 of 40 Candidate # 830001 not dispute the need to take account of the fact that the photos were taken from a distance, particularly if the person was somewhere they could legitimately believe did not expose them to public view. However, the beach club swimming pool was an open place frequented by the general public and, moreover, visible from the neighboring buildings. Is it possible in such a place to entertain a reasonable expectation of not being exposed to public view or to the media? I do not think so. I believe that this same criterion is valid for photos showing the applicant in other situations in her daily life in which she cannot expect her private life to be protected. I have in mind the photos of her doing her shopping. However, other photos--for example those of the applicant on horseback or playing tennis--were taken in places and circumstances that would call for the opposite approach.102 Judge Zupančič was even stronger in his advocacy for the expectation test: It is time that the pendulum swung back to a different kind of balance between what is private and secluded and what is public and unshielded. The question here is how to ascertain and assess this balance. I agree with the outcome of this case. However, I would suggest a different determinative test: the one we have used in Halford v. United Kingdom . . . which speaks of “reasonable expectation of privacy.” [¶] The context of criminal procedure and the use of evidence obtained in violation of the reasonable expectation of privacy in Halford do not prevent us from employing the same test in cases such as the one before us. The dilemma as to whether the applicant here was or was not a public figure, ceases to exist; the proposed criterion of reasonable expectation of privacy permits a nuanced approach to every new case. Perhaps this is what Judge Cabral Barreto has in mind . . . . [¶] . . . [R]easonableness is also an allusion to informed common sense, which tells us that he who lives in a glass house may not have the right to throw stones.103 Aside from its revitalization of the reasonable-expectations test, the von Hannover decision also highlights the fact that the determination of what is reasonable may “give rise to differences of opinion” among judges.104 Thus, if reasonable-expectations is going to be the benchmark for future cases, and the Court is to maintain consistency and credibility in its decisions, it will have to develop a more structured framework by which to proceed. It is the subject of the next part of this Paper to suggest a possible framework. 102 Id. (Barreto, J., concurring). 103 Id. (Zupančič, J., concurring). 104 Id. (Barreto, J., concurring). Defining “Private Life” by Referring to Reasonable Page 22 of 40 Expectations of Privacy and Personal Choice III. ADOPTING AND DEVELOPING REASONABLE EXPECTATIONS AS THE RULE FOR DETERMINING WHETHER PRIVATE LIFE IS IMPLICATED UNDER ARTICLE 8 The preceding sections have demonstrated that whereas the Convention tribunals initially defined private life in a piecemeal fashion, and without reference to any general framework, some opinions of the Court have now, in the last seven years, floated a trial balloon based on a person’s reasonable expectations of privacy. Although the test is as yet underdeveloped in the Court’s jurisprudence, I believe the Court is on the right course and that the underdevelopment is understandable at this stage. In this Part, I propose that the Court should embrace such a reasonable-expectations test in all future privacy component cases and expand its implementation to include personal choice cases as well. As such, I have tried to re-construct the reasonable-expectations test to include both categories of private life. In the next several sections, I offer a general statement of such a test, suggestions on how to correctly frame the applicant’s complaint, and guidelines on how to judge the reasonableness of an expectation. A. Reasonable Expectations as the Benchmark for Private Life Consider the following proposed statement as the standard to govern future cases in which the applicability of private life under Article 8(1) is in question: A public authority may not without proper justification under Article 8(2) interfere with or fail to respect matters in which a person has a reasonable expectation of privacy or personal choice. The expectation must be judged against what a free and democratic society is prepared to recognize as reasonable, but without considering, at this Article 8(1) stage of the analysis, the State’s justifications, motives or goals in interfering or choosing not to act. B. Framing the Applicant’s Complaint In assessing the reasonableness of a person’s claim that his or her private life has been implicated, it is first important to frame the applicant’s purported expectation correctly. Although this may seem an obvious point, I raise it because the framing of the expectation is more likely in my proposal, than in the Court’s current approach, to affect the outcome of a given case. The key to correctly framing the expectation is to include as many specific and salient facts as possible, rather than presenting the issue in a more abstract way. Too few facts may lead the Court to recognize an expectation as reasonable that it should not have or reject an expectation that it should have found reasonable. Aside from the mantra that the Court should consider all the relevant circumstances, particular attention should be paid to: 1. The type, nature, and frequency of the intrusion;105 2. The location of the intrusion; 3. The intruder; and 105 Such as the type of processing of personal data, as was highlighted in P.G. & J.H., Peck and Perry. H. Tomás Gómez-Arostegui Page 25 of 40 Candidate # 830001 category may affect the outcome of a case.114 Take, for example, the cases relating to transsexuality. Many of the applicants’ complaints relate to the fact that certain of their public records (e.g. birth certificates or driver’s licenses) reflect their old gender status, thereby disclosing to the world during ordinary use that the person who appears before them as a male must have at one time been a female (or vice versa). These sorts of cases should be presented as privacy expectations. However, if the case has less to do with the secrecy of the gender change and more to do with a person’s status as a transsexual per se, it must instead be presented as a personal choice expectation, otherwise the claim will fail.115 Another example of this issue in practice may be seen in the following hypothetical. Assume a government prohibits individuals from mass-mailing advertisements to the public. Aside from the obvious free speech issue, there also may be a claim for governmental interference with private life under Article 8(1).116 The claim’s success will depend on how the expectation is framed. Given that it is doubtful anyone could have an expectation of privacy as to the mailings themselves given that they were mailed to the public, a private life claim based on the privacy component would likely fail. However, the outcome would likely change if one asked whether an individual might reasonably expect that the decision to mail the advertisements, and whom to mail them to, would ordinarily be considered a matter of personal choice. C. Judging the Reasonableness The more difficult question becomes how to take the expectation as framed by the parties and the Court, and then judge whether that expectation is reasonable. I expect this area to cause the Court the most trouble. In my view, the expectation should be judged against what a free and democratic society is prepared to recognize as reasonable,117 but without considering, at this stage of the analysis, the government’s justifications, motives or 114 There may, of course, be cases where an expectation could conceivably be framed and succeed under both categories. 115 Similar distinctions may be drawn in cases involving homosexuality, such as was demonstrated in Norris v. Ireland, No. 10581/83[PC], A-142, 13 EHRR 186 (26 Oct. 1988), where the openly gay applicant was restricted by laws criminalizing homosexual behavior. [T]he interference with privacy involved [there] could not consist of activities of the state in disclosing to public view facts which the applicants wished to keep secret. Rather, the Court [held] that respect for private life includes respect for the applicants’ sexual life by which, of course, the Court must mean a sexual life of the applicants’ own choosing. Thus, “private” must be read to refer not to questions of disclosure or nondisclosure [in this case] but the right to choose certain intimate aspects of one’s life, free of government regulation. Mark Janis, Richard Kay, and Anthony Bradley, EUROPEAN HUMAN RIGHTS LAW: TEXT AND MATERIALS p. 278 (2d ed. 2000). 116 And correspondence, for that matter. 117 Cf. Katz, supra note 50, at p. 361 (Harlan, J., concurring) (stating that, in determining whether a person has a reasonable expectation of privacy for purposes of a search or seizure conducted by law enforcement authorities, the court must inquire whether the individual’s expectation of privacy is “one that society is prepared to recognize as ‘reasonable.’”). I often shorthand this concept by simply referring to a “reasonable person.” Defining “Private Life” by Referring to Reasonable Page 26 of 40 Expectations of Privacy and Personal Choice goals in interfering or choosing not to act. Thought of another way, the Court should ask itself whether a free and democratic society would tolerate the sort of intrusion the applicant has suffered (but, again, without reference to the Government’s purported justifications). Two issues bear further elaboration. The first and most obvious is, how can we judge what a free and democratic society would find to be reasonable, and the second relates to why the applicability analysis must be undertaken without considering the State’s purported justifications. 1. A Free and Democratic Society Determining what expectations a free and democratic society is prepared to recognize as reasonable naturally depends on the definition of a free and democratic society, the threshold for when an expectation becomes reasonable, and the evidence that may be considered to meet that threshold. I discuss each of these topics in the paragraphs that follow and conclude that the Court should consult the practices of the member States--primarily by referring to legal instruments and evidence of social customs--and find among them, at a minimum, an emerging consensus recognizing the right of privacy or personal choice invoked by the applicant.118 It should come as no surprise that the definition of a free and democratic society must be based in large part by reference to the member States of the Convention. By virtue of their membership in the Convention and the Council of Europe, each of the member States accepts, at least in theory, “the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms.”119 Thus, in determining the reasonableness of an expectation, the Court should look first and foremost to the practices of the contracting governments. Additionally, the Court may, if necessary (such as where the practices of the contracting States are unclear or in conflict), consult the views of non- member countries that share with Europe “a common heritage of political traditions, ideals, freedom and the rule of law.”120 I have in mind countries such as Argentina, Australia, and the United States, but there are others as well. 118 The task of finding a consensus by reference to European standards is not new to the Court. As part of the Court’s analysis whether to afford a State a margin of appreciation in the State’s decision to act or not act in a certain way, the Court often looks to whether there is a consensus or common ground among the member States on the issue. See supra Part I.B. I have thus, in the pages that follow, cited many authorities that discuss consensus in the context of the margin appreciation doctrine (at least insofar as I felt them compatible with my proposal). It nevertheless remains important to keep in mind that the goals (and, therefore, consequences) of the consensus inquiries differ in each context. With respect to the margin of appreciation, a finding of consensus means the Court will reduce its margin of appreciation, whereas a lack of consensus or common ground, in turn, causes the Court to increase the appreciation. In either case, a consensus (or lack thereof) is just one of many factors the Court will consider in analyzing the government’s justifications. It is not, by itself, dispositive. On the other hand, the purpose of the consensus investigation under the reasonable-expectations test is to determine the existence of a right. Thus, whereas the existence of a sufficient consensus means that private life is implicated, the lack of sufficient consensus means that the applicant’s claim will fail. 119 Statute of the Council of Europe Art. 3. 120 Convention on Human Rights Preamble ¶ 5; see also Kersten Rogge, Fact-Finding in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS p. 682 (R. St. J. Macdonald, F. H. Tomás Gómez-Arostegui Page 27 of 40 Candidate # 830001 It logically follows from our definition of “free and democratic society” that any evidence of an emerging consensus should come primarily from sources in or associated with the member States and (where necessary) sources in other like-minded countries. The Court should determine the position of each State individually, insofar as possible, and then compare the positions of the States to one another. The two principal factors to consider are: 1. Legal instruments, including national constitutions, legislation, regulations, case law and pending reforms; regional treaties; international treaties; and the case law of the Convention institutions; and 2. Societal norms and customs, as determined by experts, academic literature, surveys, or anecdotal evidence.121 This sort of comparative, empirical approach (often absent in the cases)122 is necessary given that there must be some methodology or evidence upon which the Court “can base the stated perception of the common will. The evolving standards in the Convention should be informed by empirical evidence [rather than] simply be plucked from the sky by the judge.”123 Matscher, and H. Petzold eds. 1993) (noting that “some interpretations of Convention guarantees also refer to the law and practice of States which, while not parties to the European Convention on Human Rights, nevertheless share the ‘common heritage of political traditions, ideals, freedoms and the rule of law’ invoked in the Preamble to this Convention.”). 121 In some cases, there may be an internal conflict in a State between a legal instrument and societal customs, thereby making it difficult for the Court to determine the true position of a member State. Whether to favor the legal instrument over the societal customs should depend on the nature and source of the law. A national law may (1) expressly approve of an expectation, by guaranteeing that a person such as the applicant has a right of privacy or person choice in the matter at issue, or (2) expressly reject an expectation, by stating or reflecting that the matter is not one in which the applicant can have an expectation of privacy or personal choice. (Of course, the most likely scenario, given the factual specificity required to frame the expectations, is that no law will speak directly on the issue either way). If there is a law that guarantees a right of privacy or choice in a matter, I would then argue that the law effectively renders within that nation the expectation to be reasonable as a matter of law, regardless of other public or expert evidence to the contrary. However, in cases where the law expressly restricts a right of privacy or choice in a matter, I would argue that at most it creates a presumption that the expectation is unreasonable in that nation, subject to rebuttal by reference to other contrary social customs evidence. The distinction follows from the fact that sometimes, within the national system of a country, it takes longer for a State’s legislation to reflect public, societal consensus. 122 See Rudolf Bernhardt, The Convention and Domestic Law in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS p. 35 (R. St. J. Macdonald, F. Matscher, and H. Petzold eds. 1993) (“A comparative approach seems to be an absolute necessity in order to find common European principles in the legal orders of these States. [¶] Under these circumstances, it may be astonishing that extensive comparative law analyses cannot be found in the judgments of the Court or the reports of the Commission.”); Öztürk v. Germany, No. 8544/79[PC], A-73, 6 EHRR 409 (21 Feb. 1984) (Matscher, J., dissenting) (“In my view, autonomous interpretation would call for comparative studies of a far more detailed nature than those carried out so far by the Convention institutions.”). 123 Paul Mahoney, Judicial Activism & Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin, 11 HUMAN RIGHTS L.J. 57, pp. 73-74 (1990); see also Yutaka Arai-Takahashi, THE MARGIN OF APPRECIATION DOCTRINE AND THE PRINCIPLE OF Defining “Private Life” by Referring to Reasonable Page 30 of 40 Expectations of Privacy and Personal Choice States, contrary to its duty to remain autonomous?136 It is for these reasons that it appears that an emerging-consensus standard is the better approach for determining whether the Court should recognize the existence of a particular right to private life. 2. Ignoring the State’s Justification When Judging the Applicability of Private Life I have left, until now, the discussion of whether a government’s justifications may be considered in analyzing whether an expectation is reasonable. I believe it imperative that any use of the reasonable-expectations test be performed without considering the government’s justifications, motives or goals in interfering or choosing not to act. In other words, the analysis of private life under Article 8(1) must be kept separate from the justification analysis normally undertaken under Article 8(2).137 Take, for example, the case where a child claims to have the right to smoke cigarettes at age 13, despite a law outlawing the practice. Under the reasonable-expectations test, we must ask whether a 13-year old child can reasonably expect that the decision to smoke or not would be a personal decision for him or her to make. But how can one perform the private life analysis without taking into account the likely government justification that the law is necessary to protect minors from the harm to health caused by smoking? Admittedly, this may appear conceptually difficult, but the separation is possible. In the hypothetical, for example, the Court might find that most people in a free and democratic society would say that a 13-year old has no right to decide whether to smoke or not, regardless of the government’s reasons for the restriction. In any event, the analytical separation is required to maintain what I perceive to be a balance of interpretation in the Convention between individuals and States. By virtue of the autonomous and “object and purpose” principles of interpretation,138 private life is construed broadly in favor of individuals. Justifications, on the other hand, so long as within the list of legitimate aims, are typically construed broadly in favor of the State, courtesy of the margin of appreciation. There is a sense of equilibrium. To import the justification analysis from Article 8(2) (with its margin-of-appreciation baggage) into the Article 8(1) analysis would unfairly tip the balance against the very people the Convention was created to protect. The State would often be afforded discretion at two different points in the analysis, thereby placing the State at a decidedly unfair advantage. All that having been said, it is important to note that I am not advocating that no justification analysis ever occur. Quite the contrary, it should occur in the normal course of events under Article 8(2), after the applicant’s private life has been shown to be affected. 136 Cf. Arai-Takahashi, supra note 123, at p. 195 (“An irony of the comparative method is, however, that reliance on national practice among the majority of Member States might jeopardize the endeavour of the Strasbourg organs to keep the Convention’s standards both autonomous and high.”). 137 In this section, I use the label “Article 8(2)” as a shorthand to include not just the justification analysis undertaken in negative obligation cases but also the justification analysis undertaken in positive obligation cases. 138 See the discussion in Parts I.A and I.B supra. H. Tomás Gómez-Arostegui Page 31 of 40 Candidate # 830001 D. Relation to Family Life, Home and Correspondence A final issue remains regarding how the reasonable-expectations test should operate vis- à-vis the other rights recognized in Article 8, such as family life, home, or correspondence. It is not uncommon for an applicant to complain of a violation of private life in conjunction with one of these other rights. And oftentimes the rights overlap, such as where the government intercepts a telephone call (correspondence)139 made from the caller’s house (home) that concerns personal information (private life) about the caller. Should the reasonable-expectations test be used to judge solely the issue of private life or should it also be used to judge all of the other rights contained in Article 8 (including home, family life and correspondence)? Unfortunately, the Court’s decisions offer little guidance on how to answer this question. The Court has not always, when reviewing complaints allegedly involving more than one Article 8 right, treated those rights separately or explained their relationship to one another.140 This occurred, for example, in Halford, wherein the Court was imprecise in separating and analyzing Article 8 claims based on private life and correspondence. Indeed, an argument might even be made that the Court intended reasonable expectations to govern both private life and correspondence claims.141 Moreover, in some cases the Commission has rigidly discussed private life while seemingly ignoring what appears to be an obvious violation of the right to respect for home.142 Interestingly, even commentators seem to disagree whether the rights should be treated in isolation or melded together.143 In any event, there are three possible approaches here: 139 Telephone communications are considered a form of correspondence. See A. v. France, supra note 11, at ¶¶ 33-36; Leach, supra note 26, at p. 151 (“[Correspondence under] Article 8 will be engaged where there is interference with a wide range of communications, including by post, telephone, telex, fax, and e-mail.”). 140 See Harris, supra note 4, at p. 303 (“Both the Commission and the Court have avoided laying down general understandings of what each of the items covers and, in some cases, they have utilized the co-terminancy of them to avoid spelling out precisely which is or are implicated when an applicant has invoked more than one of them in his claim that there has been a violation of the Convention.”); see also Klass v. Germany, No. 5029/71[PC], ¶ 41, A-28, 2 EHRR 214 (6 Sept. 1978) (failing to separate its discussion of private life and correspondence). 141 See supra Part II.A. 142 See, e.g., Artingstoll v. UK, No. 25517/94, 19 EHRR CD 92 (3 Apr. 1995) (holding that a regulation prohibiting the keeping of pets in an apartment does not implicate private life, but ignoring whether it might implicate the right to respect for home), relying on X. v. Iceland, supra note 41. 143 Compare Doswald-Beck, supra note 22, at p. 284 (“In considering the wording of Article 8, it could be said that the right to respect for family life, home and correspondence are all facets of private life. . . . [However,] [i]t is clear from the practice of the Commission and Court that the term ‘private life’ is meant to have a meaning of its own, independent of rights relating to family, home and correspondence.”), with Ovey, supra note 9, at pp. 217-218 (“[T]he fact that the rights in Article 8 are grouped together in the same article strengthens the protection given by that article, since each right is reinforced by its context. Thus, the right to respect for family life, the right to privacy, and the right to respect for the home and correspondence may be read together as guaranteeing more than the sum of their parts. . . . [¶] It is quite clear, for example, that wire- tapping, unless it can be justified in a particular case under paragraph (2), is prohibited by Article Defining “Private Life” by Referring to Reasonable Page 32 of 40 Expectations of Privacy and Personal Choice 1. The reasonable-expectations test of private life eliminates the other rights as separate, standalone grounds for a claim and is thus the sole method by which to demonstrate a violation of Article 8; 2. The reasonable-expectations test of private life is the conclusive test, but the involvement of one or more of the other rights (e.g., home) creates a presumption that the applicant’s expectation of privacy or personal choice is reasonable, shifting the burden to the Government to prove that there is a consensus to the contrary;144 or 3. Each right under Article 8(1) has its own independent meaning, such that, for example, a violation may be found of the right to respect to home, even though there was no reasonable expectation of privacy in the activity that took place there. Of the three options, the first may be discarded with little discussion. Quite simply, it would be irresponsible and contrary to the intention of the contracting States to render the remaining rights superfluous by eliminating them all together. The second option certainly is more appealing; however, the only reason to adopt it would be if one buys into the idea that all the rights in Article 8 are interrelated (or related to private life) and cannot be parsed out one from the other, as has been argued by some. But I question whether the presumption explanation would even be workable in this context, given that it assumes that the Court would normally impose the burden of persuasion on the applicant to prove a consensus, but even that is unclear. I also question whether the results of such an important issue as the existence of such a right should depend on the Government’s ability alone to muster the necessary evidence of and emerging consensus. The last option obviously is the most straightforward and favorable to applicants, as it presents them with four separate ways by which to demonstrate that a right has been implicated under Article 8, and appears the most consistent with the goals of the Convention. I would therefore be inclined to select the first option. In any event, this is a matter that the Court should clarify in future cases, particularly if adopts the reasonable-expectations test as its benchmark for private life. 8, and it matters little whether it is considered an interference with correspondence, or with privacy, or even with the home if it takes place there, since these notions should be considered together rather than in isolation.”); Marckx, supra note 12, ¶ 31 (Fitzmaurice, J., dissenting) (positing that the various rights of Article 8 are all related to the notion of “domiciliary protection of the individual”). 144 Interestingly, the United States, when presented with a similar issue relating to its use of the “reasonable expectation of privacy” test, has adopted an approach somewhat similar to this one. Reasonable-expectations is the determinative test and all of the more specific rights in the Fourth Amendment to the United States Constitution are not in themselves grounds for a claim that an unreasonable search has occurred. See supra note 50. However, there is a special proviso that if a warrantless search occurs inside a home, there is a presumption that the search violated the Fourth Amendment. See Payton v. New York, 445 U.S. 573, 586 (1980). H. 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Thomas McCarthy, 1 THE RIGHTS OF PUBLICITY AND PRIVACY 617-674 (2d ed. 2004) St. Paul: West Barbara Mensah, EUROPEAN HUMAN RIGHTS CASE SUMMARIES 1960-2000 passim (2002) London: Cavendish Publishing Ltd. J.G. Merrills and A.H. Robertson, HUMAN RIGHTS IN EUROPE 137-163 (4th ed. 2001) Manchester: Manchester University Press Alastair R. Mowbray, THE DEVELOPMENT OF POSITIVE OBLIGATIONS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS BY THE EUROPEAN COURT OF HUMAN RIGHTS 127-187 (2004) Oxford: Hart Publishing François Ost, The Original Canons of Interpretation of the European Court of Human Rights in THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS: INTERNATIONAL PROTECTION VERSUS NATIONAL RESTRICTIONS 283-318 (Mireille Delmas-Marty ed. 1992) Dordrecht: Martinus Nijhoff Publishers Clare Ovey and Robin C.A. White, JACOBS & WHITE: EUROPEAN CONVENTION ON HUMAN RIGHTS 27-41, 217-263 (3d ed. 2002) Oxford: Oxford University Press Karen Reid, A PRACTITIONER’S GUIDE TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS 144-152, 174-177, 248-251, 256-262, 284-288, 323-334, 368-371, 385-388 (1998) London: Sweet & Maxwell A.H. Robertson, DIGEST OF CASE-LAW RELATING TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS 1955-1967 164-184 (1970) Heule: U.G.A. S.A. A.H. Robertson, HUMAN RIGHTS IN EUROPE 86-92 (2d ed. 1977) Manchester: Manchester University Press Kersten Rogge, Fact-Finding in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 677-701 (R. St. J. Macdonald, F. Matscher, and H. Petzold eds. 1993) Dordrecht: Martinus Nijhoff Publishers Stig Srömholm, RIGHT OF PRIVACY AND RIGHTS OF THE PERSONALITY: A COMPARATIVE STUDY 25-44, 67-78, 103-124, 235-244 (1967) Stockholm: P.A. Norstedt & Söners Förlag P. van Dijk and G.J.H. van Hoof, THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 72-95, 489-541 (3d ed. 1998) Hague: Kluwer Law International Jacques Velu, The European Convention on Human Rights and the Right to Respect for Private Life, the Home and Communications in PRIVACY AND HUMAN RIGHTS 12-128 (A.H. Robertson ed. 1973) Manchester: Manchester University Press H. Tomás Gómez-Arostegui Page 37 of 40 Candidate # 830001 Howard Charles Yourow, THE MARGIN OF APPRECIATION DOCTRINE IN THE DYNAMICS OF EUROPEAN HUMAN RIGHTS JURISPRUDENCE 185-198 (1996) Hague: Kluwer Law International Tom Zwart, THE ADMISSIBILITY OF HUMAN RIGHTS PETITIONS 144-146 (1994) Dordrecht: Martinus Nijhoff Publishers III. JOURNALS AND ARTICLES Lee A. Bygrave, Data Protection Pursuant to the Right of Privacy in Human Rights Treaties, 6 INT’L J. L. & INFO. TECH. 247 (1998) Michael Campbell, Defining a Fourth Amendment Search: A Critique of the Supreme Court’s Post-Katz Jurisprudence, 61 WASH. L. REV. 191 (1980) Louise Doswald-Beck, The Meaning of the “Right to Respect for Private Life” Under the European Convention on Human Rights, 4 HUMAN RIGHTS L.J. 283 (1983) Laurence R. Helfer, Consensus, Coherence and The European Convention on Human Rights, 26 CORNELL INT’L L.J. 133 (1993) Jurisconsult of the Council of Europe, Analysis of the Court’s Case-Law in 2001 http://www.echr.coe.int/Eng/EDocs/JURISPRUDENCE%202001Annual%20reportE.pd f Paul Mahoney, Judicial Activism & Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin, 11 HUMAN RIGHTS L.J. 57 (1990) Kate Murray, The “Reasonable Expectation of Privacy Test” and the Scope of Protection Against Unreasonable Search and Seizure Under Section 8 of the Charter of Rights and Freedoms, 18 OTTAWA L. REV. 25 (1986) Smoking a Basic Human Right, Norwegian County Rules, Agence France Presse (14 Apr. 2004) Smoking Ban Violates Human Rights, AFTENPOSTEN (14 Apr. 2004), http://www.aftenposten.no/english/local/article772700.ece IV. DECISIONS, REPORTS AND JUDGMENTS OF THE EUROPEAN COMMISSION AND COURT OF HUMAN RIGHTS The matters below often are comprised of several decisions from the Convention institutions (for example, a decision on admissibility from the Commission and a judgment on the merits by the Court). Please note that I also reviewed other decisions that do not appear below, but their lack of relevance led me to exclude them from this list. A. v. France 14838/89 23 Nov. 1993 Adamson v. UK 42293/98 26 Jan. 1999 A.D.T. v. UK 35765/97 31 July 2000