Article 12 – Privacy

What does this right mean?

The right to privacy protects in two ways. Firstly, it protects people from the state, from the government itself. For instance, from a police raid carried out without permission from a judge. So, the government is not allowed to do something. Secondly, the government sometimes does have to do something to protect privacy. For instance,  if other civilians or companies violate someone's privacy, such as social-media platforms. In that case, the state does have to actively protect privacy. Which of the two sides of this right matters the most depends on the situation.

Article 12 specifies a number of elements of this privacy. ‘No interference with his family or home’ is reasonably self-explanatory. But correspondence? For correspondence, you can think along the lines of verbal, written and electronic communication with others. Business-related conversations, such as for your job, can be a part of that too. One example of the protection of correspondence is traditional mail per letter, but also texts to friends and other information on your phone.

Attacks upon honour or reputation are often about statements which can be harmful to a person or company. In a big part of the court cases on this, it is about statements made in an article in the media or during a television broadcast. The right to privacy then often conflicts with the right to freedom of speech. In such a case, the judge has to balance what is more important in that concrete situation. For example, in the case concerning a 'blacklist' of doctors on the internet this was judged as unlawful, and the doctors' right to honour and good name prevaled over the right to freedom of expression.

Privacy; I have nothing to hide; but they do not need to know that.

What is the history of this right?

Article 12 of the Universal Declaration of Human Rights is also called the right to privacy or the right to a private life. Shortly after the Second World War, there was no broad right to privacy for everyone which protected all its aspects yet. So, it was really innovating that Article 12 not only protected people's private lives, but also their family lives, their homes, their communication with others (‘correspondence’), and their honours and reputations (‘good name’).

Where and how is this right documented?

The right to privacy from the Universal Declaration was quickly documented in the most important European human rights convention. Article 8 of the European Convention on Human Rights (ECHR) states that everyone has to the right to respect for his private and family life, his home and his correspondence. This article states that this right may only be infringed if it is necessary for certain purposes, such as safety or protecting other people's rights, AND if the law of a country states that it is allowed. So, the right to privacy is not an unlimited or absolute right. The right to privacy can also be found in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

Privacy rights are also documented in worldwide treaties on human rights. First of all, in Article 17 of the International Covenant on Civil and Political Rights (ICCPR). The right also applies to children, as is shown in Article 16 of the Convention on the Rights of the Child (CRC).

The Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data from 1981 has the objective to protect these rights. Article 1 determines that the convention is focused on the right to privacy with regard to data protection. So, the treaty is about the automated processing of data belonging to an individual, for which technological resources are used.

Article 10 of the Constitution of the Netherlands also states everyone has the right to ‘respect for his privacy’. The prohibition on entering a home against the will of the occupant can be found in Article 12 of the Constitution. The right to respect for ‘privacy correspondence and telecommunication’ is documented in Article 13 of the Constitution. What exactly is covered under this protection? When it comes to privacy, you can think along the lines of your house, your correspondence, the texts on your phone and the right to not be eavesdropped.

How topical is this human right?

We do not send letters often anymore. Most people send postcards for holidays or birthdays at best, and even that is often done by texting. What use do we have for the protection of our ‘correspondence’? The term correspondence is old fashioned. That is why for instance the Constitution of the Netherlands was changed in 2022. It currently protects the ‘privacy of correspondence and telecommunication’.

A new formulation can be quite tricky, by the way, because you cannot predict how the technology will develop. If you write something which applies to current technology, there is the risk it will be ‘old-fashioned’ or outdated in a few years or even a few months. Criticism on this new formulation does exist, so it will probably be changed again in the future. Maybe a new right to privacy will then not be written by the House of Representatives of The Netherlands, but by an algorithm.