The Evolution of the Right to Privacy: From Warren and Brandeis to European Human Rights, Prove d'esame di Diritto Internazionale

Scarica The Evolution of the Right to Privacy: From Warren and Brandeis to European Human Rights e più Prove d'esame in PDF di Diritto Internazionale solo su Docsity! The juridical evolution of the right to Privacy. From the origins in Warren & Brandeis to the current and future prospects. The juridical evolution of the right to Privacy. From the origins in Warren & Brandeis to the current and future prospects. Sofia Silingardi University of Trento The juridical evolution of the right to Privacy. From the origins in Warren & Brandeis to the current and future prospects. Abstract From the right to Privacy’s origins, which date back to Warren and Brandeis’s paper, it was analysed the development of the meaning that this right had in the American and European jurisprudence, with a particular regard to the Italian one. If, originally, the right to Privacy was born and evolved as the mere “right to be let alone”- with a structure ascribable to the right to property – the concept of Privacy, especially in the European context, has expanded, to the extent of including the right to the protection of personal data and to personal identity, and has strengthen, placing itself among the rights relating to the personality. Today, data protection fulfils the task of ensuring the "habeas data", required by the changed circumstances, and thereby becomes an undeniable component of civilisation, as it occurred in the history of the habeas corpus. Nowadays, an actual “constitutionalisation” of the individual is happening, as clearly shown by the Charter of Fundamental Rights of the EU, whose new, autonomous, fundamental right to data protection is an essential component. This haven, however, does not seem permanent, since the collection and distribution of data, in the contemporary societies, take place mainly through internet and the necessity of arranging and promoting, at least at a European level, an Internet Bill of Right seems to be topical: a document that ensures a set of guarantees for the access to the web, and, primarily, to protect the privacy, the personal data and, more generally, the “electronic body” of the individuals. Keywords: privacy, right to be let alone, personal identity, personal data protection, electronic body The juridical evolution of the right to Privacy. From the origins in Warren & Brandeis to the current and future prospects. personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise”10. Consequently, Warren e Brandeis conclude their text stating that the right to Privacy already exists and that judges have at their disposal every instrument to apply it and to adapt its content to the necessities of the evolving society: “the common law has always recognized a man’s house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the Courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity ?”11. Nevertheless, the evolution of this right in the United States was not too simple, despite the convincing essay, because for a long time the Courts denied the recognition of the right to Privacy as autonomous right, on the basis that it is not contemplated in the American Constitution. The case Olmstead vs United States del 192812 emerges as exemplary: it was judged the legitimacy of a smuggler’s conviction at the time of Prohibition, based on wiretappings carried out without any judicial mandate. The Supreme Court confirmed the legality of the evidences’ collection and employment, delivering le subsequent sentence, despite the dissenting opinion of Louis Brandeis, meanwhile become Justice of the Court, who encouraged the Court to supply an interpretation of Amendment IV13 that took into account not only the Founding Father’s will, but also the changes due to the passing of time and to the need to update the above-mentioned literal principles to the development of society. Basing on this premise, Justice Brandeis recalled that “the makers of our Constitution … conferred, as against the Government, the right to be let alone – the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment”14. However, only in the 1970s can be dated the recognition by the American Courts of the right to Privacy, with the judgements of Griswold v. Connecticut (1965)15 and, mainly, Katz v. United States (1967)16. Actually, in the first case, Justice Douglas just observes that “the foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance … various guarantees create zone of privacy”17. , The second judgment appears to be more useful instead, since it was stated that “it is unconstitutional under the Fourth Amendment to conduct a search and seizure without a warrant anywhere that a person has a reasonable expectation of privacy, unless certain exceptions apply … (because) the Fourth Amendment protects people, not places”18. What really seems relevant is the concurring opinion of Justice Harlan, who clarifies that only in case the expectation of a person’s privacy is 10 Louis D. Brandeis – Samuel Warren, The right of privacy, op. cit., page 213. 11 Louis D. Brandeis – Samuel Warren, The right of privacy, op. cit., page 220. 12 Olmstead v. United States 277 US 438 (1928). 13 U.S. Constitution, Bill of Rights, Amendment IV: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. 14 Olmstead v. United States 277 US 478 (1928). 15 Griswold v. Connecticut, 381 US 479 (1965). 16 Katz v. United States, 389 US 347 (1967). 17 Griswold v. Connecticut, 381 US 484 (1965). 18 Katz v. United States, 389 US 351 (1967). The juridical evolution of the right to Privacy. From the origins in Warren & Brandeis to the current and future prospects. considered by the society as reasonable, this expectation may turn into a right protected by Amendment IV19. Then, if the right to Privacy arose with Warren e Brandeis, as “right to be let alone”, and developed through a gradual acceptance in the jurisprudence of the Courts, in Europe the path was less linear, also affected by the rapid evolution of society from a social, political, economic and technological perspective. In the European reality, the consecration of the right to Privacy related to the idea of personal identity can be found in Art. 8 (1) of the European Convention on Human Rights20. The differences among the various national systems, however, did not facilitate the achievement of a unanimous concept of the right to Privacy and Italy represented an avant-garde instance, though with difficulties. In fact, initially, the Court of Cassation denied the existence of this right, declaring that in the Italian legal system a right to Privacy did not exist, while only single personal rights were, in different ways, recognised and safeguarded and that, consequently, it was not forbidden to communicate, both privately and publicly, others’ lives facts when they had been discovered lawfully21. So, basically, there was no need to recognise, nor create, an autonomous right to Privacy: the protection was granted, according to the general principles of the Italian legal system, in case of violation of the principle of neminem laedere, as stated in Art. 2043 of the Italian Civil Code. By reading carefully Art. 2 of the Italian Constitution, which recognises the inviolable freedom of the person to self-determination22, it emerged a juridical development, in 1963, which caused the Supreme Court to affirm that, although the typical right to Privacy was inadmissible, the divulgation of facts regarding private lives, in the absence of consent, violated the absolute right to personality23. Although conceiving the right as a feature of the universal personal right, the Italian jurisprudence still could not manage to assert its subsistence as autonomous right. The crucial moment occurred in 1975, when the Court of Cassation established that the Italian system acknowledged the right to Privacy, which consisted of the protection of those strictly personal and family facts, which, even if occurred outside the domestic domicile, did not represent for thirds a socially-significant interest, against the interferences that, though carried out through unlawful measures, for - not exclusively - speculative purposes, were not justified by preeminent public interests24. The reasoning followed by the Court started from the reference to various rules of the Italian system, to achieve a clear recognition of the belonging to the individual of fundamental properties already recognised, though implicitly, by essential principles of the system and of the social awareness: those of life, of physical integrity, of freedom, of moral dignity and, among these, even of right to Privacy. Also at a European level, there was an evolution of this topic, culminating with the approval of the Directive 95/46/CE25, which ratified the presence of a right “of protection of personal data”, distinct from the right to Privacy. Italy adopted the directive, transposing it the law n.675/1996, which 19 Katz v. United States, 389 US 361 (1967); for an in-depth examination of the thesis supported by Justice Harlan: “A reconsideration of the Katz Expectation of Privacy Test”, in 76 Michigan Law Review, University of Michigan, 1977. 20 Art. 8 (1), ECHR: “Everyone has the right to respect for his private and family life, his home and his correspondence”. 21 Cassazione civile, Judgement No. 4487/1957 of 22 December. 22 Italian Constitution, Art. 2: “The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled”. 23 Cassazione civile, judgement No. 990/1963 of 20 April. 24 Cassazione civile, section III, judgement No. 2129/1975 of 27 May. 25 Directive 95/46/CE of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. The juridical evolution of the right to Privacy. From the origins in Warren & Brandeis to the current and future prospects. claimed that the treatment of personal data not only had to occur with respect for the fundamental rights and freedoms, but also for the personal dignity, providing for the extension of the protection even to personal identity. Introducing this advanced norm, Italy went beyond the traditional conception of the right to Privacy as “right to be let alone”, designing it as an instrument to grant freedom and dignity, just as stated at the beginning of this paper. Then, at European level, the right of protection of personal data embraced an additional detailed study and development. The ECHR protected, indeed, the private and family life, as seen in Art. 8, but did not contemplate a specific reference to the previously-cited right, which resulted in the fact that the related right’s protection could be pledged only through the interpretation of the Court of Strasburg. The issue was solved, in 2000, thanks to the Charter of Fundamental Rights of the European Union26 (“the Charter of Nice”), which, providing in Art. 8(1) that “everyone has the right to the protection of personal data concerning him or her”, raises this right to the rank of a new right safeguarded at a constitutional level, endowed with direct applicability. Nowadays, therefore, it can be said that, thanks to the juridical evolution both at internal and European normative level, a new right to Privacy has been accomplished, not only as “right to be let alone”, but also as a complex of right to personal identity and of protection of personal data, all endowed with constitutional worth. Compared to the initial proposal, centred on Professor Rodotà’s wish of a legal system that could grant the observance and protection of the right to Privacy and to personal identity in a society grounded on equality, participation, freedoms and dignities, it can be stated that the European legal system, which promotes the right to Privacy as a fundamental right of the Union, offers superior guarantees than the American one. The latter is, in fact, still stable on the juridical elaboration and, however, refers the States the application of the right, often with the consequence that the national security’s exigencies tend to prevail over the individuals’ privacy. Nevertheless, the main problem arising consists of the fact that this topic is strictly dependent on the continuous technological advancement in the management of data. Some scholars have believed27 that the protection of privacy, born as a right to exclude the others’ intrusion in one’s personal sphere, today should be structured as a right to control one’s own personal data, no matter where they are, with the consequence that people are always more in need of a protection of their own “electronic body”. From here derives the invocation of a habeas data, as an evolution of that habeas corpus, from which historically developed the personal freedom28. In this sense, then, since the collection and distribution of data, in the contemporary societies, take place mainly through the web and internet, the necessity of arranging and promoting, at least at a European level, an Internet Bill of Right 29 seems to be topical: a document that does not aim at restraining freedom, but, by contrast, that ensures a set of guarantees for the access to the web, and, primarily, to protect the privacy, the personal data and, more generally, the identity and the “electronic body” of the individuals. 26 Charter of Fundamental Rights of the European Union (2000/C 364/01). 27 Stefano Rodotà, Il mondo nella rete. Quali i diritti, quali i vincoli, Laterza, Roma – Bari, 2014. 28 Stefano Rodotà, Il mondo nella rete. Quali i diritti, quali i vincoli, op. cit., pages 30-31. 29 In this regard, there have been different initiatives in the various countries, directed by private Organisms and Associations; from this perspective, one of the most interesting experience was the “Declaration of Internet’s rights”, approved by the Italian Parliament on 3rd November 2015, found in www.camera.it/application/xmanager/projects/leg17/commissione_internet/TESTO_ITALIANO_DEFINITIVO_2015. pdf