Category Archives: privacy

European Court Holds Secret Surveillance Did Not Violate Employees’ Privacy

Delivery of Grand Chamber judgment in López Ribalda and Others v. Spain
Credit: ECtHR

Overturning a previous chamber decision, the Grand Chamber of the European Court of Human Rights (ECtHR) held that employees’ right to privacy was not violated when a Spanish supermarket used visible and secret cameras to record public areas of the store when it suspected significant theft by employees. See ECtHR, López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, Judgment of 17 October 2019. Despite domestic law and international standards requiring that individuals be notified of video surveillance, the Grand Chamber held that the State had not exceeded its “margin of appreciation” under the European Convention on Human Rights (European Convention) when domestic courts rejected the applicants’ constitutional claims and upheld their dismissal, given that there was a “weighty justification” for the use of covert surveillance and the applicants had not used domestic legal safeguards to challenge the surveillance under data privacy laws. See id. at paras. 131, 134-37. This judgment expands the European Court’s doctrine on the legitimate use of surveillance in the workplace. See ECtHR, Factsheet – Surveillance at Workplace (Oct. 2019).

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European Court of Human Rights Issues First Ever Advisory Opinion

Courtroom of the European Court of Human Rights in Strasbourg
Credit: Adrian Grycuk via Wikimedia Commons

In its first advisory opinion, the European Court of Human Rights (ECtHR) considered the parental rights, under French law, of intended mothers to children born abroad through a surrogacy arrangement. See ECtHR, Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Request no. P16-2018-001, Advisory Opinion of 10 April 2019. The Court established that intended mothers, whether biological or not, should have the possibility of obtaining legal recognition in France of their relationship with the child where the intended (and biological) father has been legally recognized and where the intended mother is identified as the “legal mother” in the foreign birth certificate. The advisory opinion is the Court’s first since the entry into force, in 2018, of Protocol No. 16, which authorizes the highest courts of States parties to request opinions from the Court on the interpretation or application of the to the European Convention on Human Rights with regard to specific legal questions. [IJRC] It remains to be seen how France will continue with the domestic proceedings that were postponed pending the ECtHR’s opinion. See Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Advisory Opinion of 10 April 2019, at para. 18.

Legal Background

This advisory opinion emanates from the facts and events of the ECtHR’s judgment in the 2014 Mennesson v. France (no. 65192/11) case. See id. at para. 10. In that case, two children born in the United States via a surrogacy arrangement were denied legal recognition, in France, of their relationship with their intended parents, even though that relationship was legally recognized in the U.S. See id. at para. 10. The European Court decided that there had been no violation of any party’s right to respect of their family life, but that the children’s right to respect for private life had been violated. See id. at para. 11. The Court reasoned that the right to respect for private life included the ability to determine details of one’s identity, which includes the identification of one’s legal parents. See id. at para. 12.

This ruling expressly noted that it can never be in the best interests of the child to deny legal recognition of the relationship between children and their “intended” and biological father. See id. at para. 13. Since that ruling, French courts have allowed the registration of the intended father as the legal father, if he was also the biological father of the children in question, but did not provide the same recognition to the intended mother. See id. at para. 14. The only option under French law is for an intended mother to adopt her spouse’s child, provided she is married to the biological and intended father. See id. In 2017, the Mennessons, acting as their children’s legal representatives, requested a new decision regarding their appeal against the Paris Court of Appeals’ 2010 decision to annul the legal recognition of both parents’ relationship with their two children. The French Court of Cassation requested an advisory opinion from the European Court for the purposes of re-examining that appeal. See id. at paras. 16-17.

The Advisory Opinion

The French Court of Cassation requested this advisory opinion on October 12, 2018. See id. at para. 1. On December 3, 2018 the five-judge panel of the Grand Chamber accepted the request, which raised two questions for the ECtHR:

1. By refusing to enter in the register of births, marriages and deaths the details of the birth certificate of a child born abroad as the result of a gestational surrogacy arrangement, in so far as the certificate designates the ‘intended mother’ as the ‘legal mother’, while accepting registration in so far as the certificate designates the ‘intended father’, who is the child’s biological father, is a State Party overstepping its margin of appreciation under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? In this connection should a distinction be drawn according to whether or not the child was conceived using the eggs of the ‘intended mother’?

2. In the event of an answer in the affirmative to either of the two questions above, would the possibility for the intended mother to adopt the child of her spouse, the biological father, this being a means of establishing the legal mother-child relationship, ensure compliance with the requirements of Article 8 of the Convention?

See id. at paras. 2, 9. Article 8 of the European Convention on Human Rights protects the right to respect for private and family life.

State’s Refusal to Legally Recognize “Intended Mother”

In consideration of the first question, the ECtHR prioritized two factors: 1) the best interest of the child; and, 2) the scope of the margin of appreciation afforded to France in fulfilling its human rights obligations. See id. at para. 37. With respect to the best interests of the child, the European Court noted that while the State may have an interest in preventing individuals from undergoing procedures to assist their reproduction efforts that are legally precluded domestically, children who are conceived via such arrangements stand to face substantial hardships in the absence of the legal recognition of the relationship to their parents. See id. at paras. 39, 40. Specifically, the ECtHR stated that the children’s right to respect for private life under Article 8 of the European Convention is negatively impacted when domestic law does not recognize the legal relationship between children conceived via assisted reproduction methods, such as surrogacy, and their intended mother. See id. at para. 40. The Court further stated that an “absolute impossibility of obtaining recognition of the relationship between a child born through a surrogacy arrangement entered into abroad and the intended mother is incompatible with the child’s best interests.” See id. at para. 42.

With respect to the State’s margin of appreciation, an important factor – determined on a case-by-case basis – is the existence of legal “common ground” between States in Europe. See id. at para. 43. The ECtHR considered relevant laws among other Council of Europe States and acknowledged the low level of consensus on this issue, which would suggest a greater margin of appreciation. See id. However, the ECtHR also noted that the margin of appreciation may be restricted in cases in which particularly important issues of identity, such as the legal recognition of a parent-child relationship, are at stake. See id. at paras. 43-44. Thus, the ECtHR concluded that the State’s margin of appreciation is reduced given the circumstances outlined in this case. See id. Considering the best interests of the child and the reduced margin of appreciation, the Court stated that Article 8 “requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother.” See id. at para. 46.

Methods of Legal Recognition

With regard to the second question posed, the ECtHR considered Convention required a specific type of legal recognition of the parent-child relationship when there was no biological relationship between the child and intended mother. See id. at para. 48. The opinion states that the best interests of the child dictate that the period of legal uncertainty surrounding children’s relationship with their parents should be as brief as possible, but that this did not require that State adopt the exact details of birth certificates created abroad. See id. at paras. 49-50. Based on the lack of legal consensus within Europe and the Court’s view that an “individual’s identity is less directly at stake” when there is no biological relationship at issue, the Court concluded that it falls within States’ margin of appreciation to decide how exactly to recognize the parent-child relationship. See id. at para. 51. Therefore, alternatives including adoption by the intended mother may satisfy Article 8 so long as the process can be completed “promptly and effectively” and “in accordance with the best interests of the child.” See id. at para. 55. The ECtHR noted that it was not within the scope of its opinion to make a determination on the adequacy of French adoption law. See id. at para. 58.

Advisory Opinion Jurisdiction

On April 14, 2018, France became the tenth State to ratify Protocol 16 to the Convention on the Protection of Human Rights and Fundamental Freedom, triggering its entry into force in August of that year. [ECtHR Press Release] This Protocol extended the jurisdiction of the European Court of Human Rights to include advisory jurisdiction for States that have ratified Protocol 16. [ECtHR Press Release]

To request an advisory opinion, a State court must provide reasons for its request, provide the relevant legal and factual background of the case, and must have the issue currently pending before it. See Protocol 16, art. 1(3). The State may submit written comments and may take part in the hearing. See id. at art. 3. The President of the ECtHR may also invite other States or individuals to submit comments or take part in the hearing. See id. While the advisory opinion of the ECtHR is non-binding on the State, the aim is to give the domestic courts guidance on interpretation of the relevant provisions of the Convention that relate to the case before it. See id. at art. 5; Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Advisory Opinion of 10 April 2019, at para. 25. The ECtHR does not have jurisdiction to assess the facts of a domestic case or to interpret domestic law. See Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, Advisory Opinion of 10 April 2019, at para. 25. Ultimately, the requesting court or tribunal must still decide the case itself. See id.

So far, 13 States in the Council of Europe have ratified Protocol 16. Those are Albania, Andorra, Armenia, Estonia, Finland, France, Georgia, Greece, Lithuania, Netherlands, San Marino, Slovenia, and Ukraine. See Council of Europe Treaty Office, Chart of signatures and ratifications of Treaty 214. An additional nine States have signed but not ratified Protocol 16. Those are Belgium, Bosnia and Herzegovina Italy, Luxembourg, Norway, Republic of Moldova, Romania, Slovak Republic, and Turkey. See id.

Additional Information

For more information about the European Court of Human Rights, visit IJRC’s Online Resource Hub. To stay up-to-date on international human rights law news, visit IJRC’s News Room or subscribe to the IJRC Daily.

European Court: UK’s Mass Interception of Online Communications Violated Rights

European Court of Human Rights
European Court of Human Rights

European Court of Human Rights
Credit: CherryX via Wikimedia Commons

On September 13, 2018, the European Court of Human Rights (ECtHR) ruled that the United Kingdom’s bulk collection of online communications and its collection of data from communication service providers (CSPs) violated the rights to privacy and freedom of expression. See ECtHR, Big Brother Watch and Others v. the United Kingdom, nos. 58170/13, 62322/14, 24960/15, ECHR 2018, Judgment of 13 September 2018. Although the Court did not rule that mass collection is inherently a violation of privacy, disappointing many privacy advocates, the ECtHR held that such programs must have adequate safeguards to protect against abuse. [Sky News]

The decision is the first time that the ECtHR has reviewed the UK’s surveillance program since whistleblower Edward Snowden’s revelations in 2013, which revealed cross-border government surveillance efforts, including those by the UK intelligence agency Government Communications Headquarters (GCHQ) to intercept millions of private communications. [Guardian] The ECtHR did not consider the legality of the 2016 legislative amendments to the UK’s surveillance program, which followed the Snowden disclosures and are currently being challenged domestically. [Guardian] Read more

Mandatory HIV/AIDS and Drug Testing Violates Rights to Privacy & Equal Protection

The Allée des Nations
Credit: Tom Page via Wikimedia Commons

During its 123rd Session, the United Nations Human Rights Committee issued its first decision on the privacy and equal protection implications of mandatory HIV/AIDS and drug testing for individuals seeking a visa extension. See Human Rights Committee, Vandom v. Republic of Korea, Communication No. 2273/2013, Views of 12 July 2018, UN Doc. CCPR/C/123/D/2273/2013. The case concerned an American English teacher, working in the Republic of Korea, whose application to renew her teaching visa was denied after she refused to submit to a mandatory HIV/AIDS and drug test. See id. at paras. 1-2.8. The Human Rights Committee held that the Republic of Korea’s policy of requiring mandatory drug and HIV tests from individuals who were not nationals of the State or of Korean ethnicity and who were seeking to obtain teaching visas constituted a violation of the right to equal protection and the right to privacy under the International Covenant on Civil and Political Rights (ICCPR). See id. at paras. 8.5, 8.9. While this is the first case in which the Human Rights Committee has reviewed mandatory drug and HIV testing policies, another treaty body, the UN Committee on the Elimination of Racial Discrimination (CERD), issued a decision in 2015 on the Republic of Korea’s mandatory testing policy. [IJRC] The CERD found that the policy amounted to racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The case before CERD did not discuss the right to privacy. [IJRC]

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Supreme Court of India Declares Privacy Is a Fundamental Right

Supreme Court of India
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At the end of August, the Supreme Court of India unanimously held that the Constitution of India specifically protects the right to privacy, which it concluded is inherent to constitutional guarantees of life and liberty pursuant to its Article 21 and, therefore, already exists as a fundamental freedom enshrined in the Constitution. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (2017) (India) (opinion of Chandrachud, J.), at 110, 254, 257, 262. The decision arose from a case challenging the constitutionality of the country’s system of using biometrics to identify individuals. For the case to move forward, the nine judges of the Supreme Court of India had to first determine whether the Constitution of India protects the right to privacy. See id. at 7. Affirming the right, the court’s decision was in accordance with international standards on privacy; the court confirmed that individuals have a zone of privacy limited by others’ rights and that the State may interfere with the right to privacy only through established law in pursuit of a legitimate aim and when necessary in a democratic society. See id. at 180-91, 242-46. The constitutional challenge to the biometric identification system will now resume, taking into account the privacy framework decided by the court.

According to Human Rights Watch (HRW) the ruling in the present case will not only have an impact on national policies concerning mandatory identification programs, but also other domestic issues, such as sexual orientation; the opinion explicitly states that sexual orientation is essential to privacy and identity, and discrimination on the basis of sexual orientation is counter to dignity. A challenge to India’s law criminalizing same-sex relations is also currently pending in court. [HRW] See id. at 124. The decision already overruled two prior domestic cases that held the right to privacy is not specifically protected under the Constitution of India. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (opinion of Chandrachud, J.), at 5. Read more

ECtHR: Romania Violated Privacy Rights After Employer Monitored Instant Messages

European Court of Human Rights
Credit: CherryX via Wikimedia Commons

On September 5, 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) ruled that a private company’s decision to dismiss an employee, after monitoring and accessing his instant messages sent from the workplace, violated the employee’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights. See ECtHR, Bărbulescu v. Romania [GC], no. 61496/08, ECHR 2017, Judgment of 5 September 2017, para. 141. The ECtHR held that Romanian authorities did not protect Bogdan Mihai Bărbulescu’s right to private life because the Romanian courts did not adequately balance Bărbulescu’s interest in privacy and the employer’s interest in monitoring communications sent from the workplace. The national courts, the European Court found, did not sufficiently assess the relevant factors of whether the employer gave prior notice to the employee that communications may be monitored; whether there was a reasonable justification for monitoring the employee’s communications; whether there were less intrusive measures available to the employer to achieve the same end; and the necessity of the disciplinary action taken against the employee. See id. at para. 124, 133, 139-41. This case adds to the ECtHR’s developing jurisprudence on the balance between the competing interests of an employee’s right to privacy and a private employer’s right to monitor communications; two previous cases determined that the State has a positive obligation to protect the employee’s right to privacy of telephone communications, email, and internet use that originates at work. See ECtHR, Halford v. the United Kingdom, no. 20605/92, ECHR 1997, Judgment of 25 June 1997; ECtHR, Copland v. the United Kingdom, no. 62617/00, ECHR 2007, Judgment of 3 April 20017. Read more

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