In our modern, fast-paced world, where digitalization is reshaping our communication methods, it is crucial to grasp the importance of the right to confidentiality of communications. This right, enshrined in the laws of the European Union, is a cornerstone of individual privacy. However, recent times have witnessed a rise in concerns about potential violations of this right. Governments, law enforcement agencies, and other intelligence entities are increasingly seeking access to private communications for reasons of national security, public safety, and other justifications. This has sparked a complex debate on the fine line between privacy and security. While it is undeniably crucial to protect citizens from harm, it is equally vital to ensure that their rights are not infringed upon in the process. Thus, the need to strike a delicate balance between individual privacy and the needs of society as a whole becomes paramount.
The Regulatory Framework in the EU
The right to confidentiality of communications is a fundamental right protected within the European Union by two essential documents: the Charter of Fundamental Rights of the European Union (CFREU) and the European Convention on Human Rights (ECHR).
The CFREU was proclaimed in Nice on December 7, 2000, by the Council of Europe and is now part of the Treaty of Lisbon. This treaty gives the CFREU the value of a Treaty, making it fully binding for all European institutions and Member States. It is significant to note that the CFREU explicitly recognizes the right to protect personal data and respect private and family life.
On the other hand, the ECHR is a legal instrument of fundamental importance in matters of confidentiality at an international level. It was signed in Rome on November 4, 1950, and is designed to protect human rights and fundamental freedoms. The ECHR guarantees the right to respect for private and family life, home and correspondence, and freedom of expression, thought, and religion.
Notably, the European Court of Human Rights (ECtHR) plays a vital role in the confidentiality of communications. With its judgments, the ECtHR resolves potential disputes arising from violations of the provisions established in the European Convention on Human Rights. This provides a sense of security, knowing that a robust mechanism is in place to protect individual rights. Individuals can refer to Articles 32, 34, and 46 of the ECHR for further understanding.
The Charter of Fundamental Rights of the European Union, in addition to providing for the inviolability of human dignity, freedom, equality, and solidarity, also establishes the right to respect for private and family life, home, and communications with Art. 7.
Art. 7 – Respect for private life and family life
“Everyone has the right to respect for his or her private and family life, home and communications.”
This right is fundamental and essential to all individuals, as it protects their personal autonomy and privacy.
Article 7 of the Charter is similar to Article 8 of the European Convention on Human Rights (ECHR), which guarantees the right to respect for private and family life, home, and correspondence. However, the difference is that the Charter replaces “correspondence” with “communications” to account for technological advancements.
Article 52(3) of the Charter states that the meaning and scope of Article 7 is the same as that of Article 8 of the ECHR. Therefore, the limitations that can be placed on this right must be lawful and correspond to those laid out in Article 8 of the ECHR.
Article 8 of the ECHR specifies that public authorities cannot interfere with an individual’s right to respect their private and family life, home, and correspondence except when it is necessary for certain purposes, such as national security, public safety, the country’s economic well-being, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.
Article 8 safeguards individuals against arbitrary interference by public authorities in their private and family life, home, and correspondence. The European Court of Human Rights has reiterated this purpose in several cases, including application no. 6833/743.
In conclusion, the provisions related to the confidentiality of communications are critical in protecting individuals’ right to privacy and autonomy. The Charter of Fundamental Rights of the European Union and the European Convention on Human Rights provide essential safeguards to ensure that public authorities do not arbitrarily infringe upon this right.
Every state member of the Council of Europe must refrain from adopting any measures that are not legitimate, and that may deprive individuals of their fundamental rights. Furthermore, every country, irrespective of its membership in the Council, is always bound to act by the law.
Before discussing the provisions of Article 8, it is essential to reiterate that the term “correspondence” is not restricted to traditional letters but includes all forms of private communication. This implies that the right to privacy extends to all modes of communication, including modern instant messaging platforms and social media, thereby ensuring a comprehensive protection of privacy rights.
It is worth noting that individuals have the right to safeguard their communications, regardless of the type or medium used. This means that the right to privacy is not limited to handwritten letters but includes all forms of electronic communication. In this regard, it is pertinent to refer to the provisions of the ECtHR (application no. 11801/855, 70204/016, 74336/017). These provisions offer detailed guidance on the scope and limitations of the right to privacy in the modern era of electronic communication and provide a valuable resource for individuals seeking to protect their rights.
Balancing national security, public safety, crime prevention, and individual rights
The issue of balancing national security, public safety, crime prevention, and individual rights is a complex one. While Article 8 of the European Convention on Human Rights (ECHR) allows for exceptions, public authorities have the right and duty to intercept communications in exceptional cases. This is done solely to protect national and general security and prevent crimes. However, the execution of this proper duty often raises questions.
The European Court of Human Rights (ECtHR) has issued some exciting decisions concerning the internal provisions developed by some essential signatory countries of the ECHR regarding the interception of communications. These include application n. 8691/798, 11105/849, and 88/1997/872/108410.
It is of fundamental importance to observe that the right to secrecy of communications of the individual can be violated only to protect the institutions and the public interest. It is crucial to ensure that such violations are done for the time strictly necessary and in ways proportionate to the interest that the authority aims to protect, as already established by the ECtHR, application no. 5029/9111 and 56298/0012. The ECtHR has made it clear that executing this proper duty must respect fundamental rights and freedoms and the principles of a democratic society.
It is essential to understand that the interception of communications is a delicate matter that must be carried out with caution and respect. Any interception must be done according to the law and with the appropriate safeguards to respect the right to privacy. Therefore, it is the authorities’ responsibility to ensure that any interception of communications is strictly necessary and proportionate to the interest the authority aims to protect. Any violation of the right to secrecy of communications should be done only in exceptional cases and with the utmost care.
Attachments:
[1] Charter of Fundamental Rights of the European Union (“CFREU”);
[2] European Convention on Human Rights (“ECHR”);
[3] European Court of Human Rights, application no. 6833/74, decision of 13 June 1979, Marckx // Belgium;
[4] European Court of Human Rights, application no. 5029/71, decision of 6 September 1978, Klass // Germany;
[5] European Court of Human Rights, application no. 11801/85, decision of 24 April 1990, Krusling // France;
[6] European Court of Human Rights, application no. 70204/01, decision of 12 June 2007, Frerot // France;
[7] European Court of Human Rights, application no. 74336/01, decision of 16 October 2007, Wieser // Austria;
[8] European Court of Human Rights, application no. 8691/79, decision of 2 August 1984, Malone // United Kingdom;
[9] European Court of Human Rights, application no. 11105/84, decision of 24 June 1990, Huvig // France;
[10]European Court of Human Rights, application no. 88/1997/872/1084, decision of 24 October 1998, Lamber // France;
[11]European Court of Human Rights, application no. 5029/71, decision of 6 September 1978, Klass // Germany, paragraph 42;
[12]European Court of Human Rights, application no. 56298/00, decision of 17 July 2003, Bottaro // Italy, paragraph 39;
