—Dr. Olga Hałub-Kowalczyk, Chair of Constitutional Law, Faculty of Law, Administration and Economics, University of Wrocław, Poland
Nobody needs to be convinced of the direct impact on human rights flowing from the pandemic induced by the SARS-CoV-2 virus. The necessity of reorganizing the state and way it works goes hand in hand with sudden changes in how entire societies live, as well as the necessity of adapting to dynamically changing conditions. The interference of authorities in how we manage our time doubtlessly finds its expression in the right to privacy. The novel circumstances which nations, constitutional states and the European Union are facing induce reflection on the need of redefining the right to privacy. Does it retain its force? Has the appearance of COVID-19 in Europe expanded the sphere of acceptable interference by the state into an area which was previously free of the authorities’ presence? Will the current situation lead to lasting changes in the way privacy is perceived?
From “the right to be left alone“ to big data protection
Louis Brandeis and Samuel Warren are considered the fathers of the concept of the right to privacy, publishing in 1890 an article entitled “The Right to Privacy” in the “Harvard Law Review”. They created the notion of the “right to be left alone”, proclaiming that there is a certain zone of individual behaviour and interpersonal relations which should be free from any external interference both vertically (from the state) and horizontally (from other individuals). From then on, the right to privacy began its dizzying career. At the same time, it became one of the fundamental rights guaranteed in national constitutions as well. In the following years, the jurisprudence through progressive interpretation, decoded new aspects of privacy deserving of protection.
Against the background of the discussion on the scope of the right to privacy, however, two fundamental questions remained on the horizon: how is privacy to be defined, and what are its constituent elements? To what extent should the right to privacy “protect” an individual from the state? Both of these questions remain to this day without clear answers. The correctness of the declaration made by Justice Hugo Black, who, in a dissenting opinion from the landmark judgment in Grisword v. Connecticut (1965), stated that “«Privacy» is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures.” (K. Motyka, Prawo do prywatności i dylematy współczesnej ochrony praw człowieka. Na przykładzie Stanów Zjednoczonych, Lublin 2006).
In the second half of the twentieth century, with the emergence of international standards for the protection of human rights and the flourishing of liberal democracies, we can observe the development of privacy through guarantees of such things as family life, intimacy, sexuality, secrecy of correspondence, and respect for one’s good name. By the same token, privacy became a balloon into which legislators and courts began pumping more and more air. As a result, it became an ever larger buffer in the relation between the authorities and the individual.
Contemporary challenges for the right to privacy
From the point of view of the development of the right to privacy in Europe, in addition to regulations at the constitutional level and guarantees in the UN system or the European Union, Article 8 of the European Convention on Human Rights plays a fundamental role. It states that:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Despite the seemingly laconic nature of Article 8(1), through dynamic interpretation the right to privacy has become the basis for the discovery of a number of “new” human rights not directly expressed in legal acts, but widely discussed in the doctrine and case law, such as reproductive rights (Alicja Tysiąc vs. Poland, application no. 5410/13), the right to knowledge of biological origin (Odievre vs. France, application no. 42326/98), the right to reputation (Alex Springer AG vs. Germany, application no. 39954/08), or a number of guarantees for the protection of an individual’s personal data. Despite the lack of a coherent model of privacy protection in Europe, there is a common tendency for European countries to take a liberal approach to the right to privacy by guaranteeing individuals new areas of autonomy, in gaining independence from state structures.
Sacrifice of privacy in times of COVID-19
Closure of national borders, restrictions on air traffic, enforced remaining at home under threat of fines, closure of cultural centres, and prohibition of physical activity done outdoors constitute examples of new restrictions on the right to privacy which must find their normative justification in times of a global pandemic. Community action, including the decision of 17 March 2020 of leaders of Schengen zone states to close the EU’s external borders for 30 days, also fundamentally restricts one of the expressions of the right to privacy, the free movement of persons. Article 8(2) ECHR could provide an answer to the question of permissible limits on the right to privacy. In the context of the challenges posed by the pandemic, it is important to state in this article that the factors which may justify the state limiting the right to privacy include public safety, protection of health and protection of the rights and freedoms of others. There is no doubt that restricting the right to privacy may have a secondary impact on the exercise of other rights such as freedom from forced labour, electoral rights, or freedom of economic activity. However, the Convention introduces a requirement of necessity that must exist in a democratic state of law to restrict privacy and a formal requirement that they be regulated only by acts of law. It is therefore necessary in each individual case to balance the relationship between the good being protected and the good being sacrificed. Moreover, Article 15 ECHR claims that in time of war or other public emergency threatening the life of the nation any state may take measures derogating from its obligations under a Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
Meanwhile, in present European thinking we have taken a very cautious approach to the new face recognition systems in China, which are intended, on the one hand, to make life easier, such as when withdrawing cash at an ATM, but, on the other hand, to enable people to be tracked on a wider scale. Currently, China is improving these solutions by working on facial recognition even of people wearing medical masks. In addition, the system would ultimately be equipped with the capacity to spot people with elevated temperatures who could potentially be infected with the new virus. The previous opposition to the violation of individual privacy in China is being displaced by an increasingly bold attempt to justify it in the name of public safety and public health.
Israel also plans to introduce new technologies to combat the spread of COVID-19. Permissiveness towards the violation of privacy has been expressed by the Prime Minister of Israel himself, B. Netanyahu, who announced on 14 March 2020 that “all means will be used to fight the spread of the coronavirus”. One idea is to introduce a tool to track citizens via mobile phones and detect and then break the chain of infection by locating networks of contacts. This system could also be used to monitor the “obedience” of people in forced quarantine. Similar solutions are already being put in place in Iran, one of the countries most affected by the pandemic.
In turn, the Czech Republic, on the night of 18-19 March 2020, introduced a much less controversial restriction in the form of an obligation to wear protective masks. In addition, people over 65 years of age will only be allowed to shop between 10:00 am and 12:00.
One interesting solution has been proposed by Slovakia, which, on 12 March 2020, declared a state of emergency, while stipulating that the new circumstances would not result in a restriction of civil rights. Meanwhile, border controls in effect in most of the countries affected by the pandemic were introduced, the country’s largest airports were closed, teaching in schools and international transport was suspended. It seems that such fully justified restrictions clearly restrict the possibility of exercising constitutional freedoms and individual rights, which is one of the essential features of a state of emergency and must take place.
The current situation engulfing the world leads us to reflect on the sudden but unnoticed paradigm shift in the contemporary right to privacy. We must accept limitations on it, a return to its roots, understood as family life, personal life, the right to self-development, and the inviolability of the home. These are certain basic elements of privacy on whose basis “secondary” rights of the individual related to privacy have been interpreted. At the same time, the perception of the role of the right to privacy in relations with authorities is also changing. We are beginning to sacrifice it tacitly and implicitly, entrusting it to the state in exchange for responsible administration of the state during the emergency. A manifestation of this phenomenon is the fact that states may exceptionally resort to criminal liability measures in the event of an individual violating the right to privacy (failure to wear protective masks or failure to observe quarantine). Privacy ceases to protect us from the state and becomes a certain “public” instrument through which the authorities can order or prohibit us from certain behaviour to protect public health and the security of the state. While the question as to the legitimacy of this tendency in the times of a rapidly spreading does not seem to generate much controversy, it is important to signal a vision of the risks that a long-term, months-long entrustment of our privacy in the hands of the authorities may entail. There is no uniform border to be crossed beyond which the authorities must return to pre-pandemic standards of governance. In this respect, the individual–citizen relationship based on a tacit credit of trust that society must give to the authorities in the face of an epidemic crisis is becoming apparent.
Suggested Citation: Olga Hałub-Kowalczyk, Redefining the Right to Privacy in the Age of the COVID-19 Pandemic, Int’l J. Const. L. Blog, Apr. 2, 2020, at: http://www.iconnectblog.com/2020/04/redefining-the-right-to-privacy-in-the-age-of-the-covid-19-pandemic
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