3.-The-standard-of-privacy-protection1

A right to privacy or private life is recognized in nearly all constitutions of Europe as well asin the European Convention of Human Rights and the Charter of Fundamental Rights of theEu

A Introductory remarks on privacy 3

B Provisions of privacy protection in European Constitutional Law 3

C Comparative perspective: The right to self-seclusion as a part of the right to privacy 7

a The European Convention on Human Rights 8

II.Objective scope of protection 8

VII.Subjective scope of protection 11

h The German Basic Law 11

1.Universal personal right 12

IX.Privacy of correspondence, posts and telecommunications 14

X.Inviolability of the home 14

k The Charter of Fundamental Rights of the European Union 14

l The Polish Constitution 15

m Comparative conclusions regarding the scope of protection 15

D Restrictions on the right to privacy - surveillance 17

I The European Convention on Human Rights 17

b The Charter of Fundamental Rights 19

c The Polish Constitution 20

d Margin of appreciation 21

E Conclusion 22

F Sources 23

A Introductory remarks on privacy

The need for a protection of private sphere has become most strikingly evident in the course

of the twentieth century Technical and social developments have led to new needs ofprotection The invention of photography and the arising mass media led to inconveniencesnot only but especially for famous persons One of the early cases connected with paparazzi isthe death of the Chancellor of the German Reich Otto von Bismarck Two photographers took

a photo of the dead Bismarck and could earn lots of money with it.1 But the son of Bismarckwas granted a court order that prohibited the publication Answer to these new threats was theinvention of a right to privacy One of the most influential contributions to its developmentwas an article published in 1890 by a well-known Boston lawyer, Warren, in conjunction withBrandeis.2 They proposed that the positive law contained a general principle that, “which may

be invoked to protect the privacy of the individual from invasion either by the too enterprisingpress, the photographer, or the possessor of any other modern device for recording orreproducing scenes or sounds” Later new threats arose mainly with the development ofinformation technology that allowed much faster organization availability of data andinformation As a reaction laws on data protection were enacted, starting with the law of aGerman “Land”, the Hesse Data Protection Act of 30 September 1970.3 All these newchallenges were also recognized by constitutional and fundamental rights law Scope of thispaper is to analyze the standard of privacy protection in Europe comparing different nationaland international systems with focus on the justification of restrictions

B Provisions of privacy protection in European Constitutional Law

We have seen that the right to privacy followed a need in modern societies that arose mainlyfrom the invention of new technologies Its concrete forms have been rather developed byjudicial law than by legislature Due to this the right to privacy is not shaped precisely and cantherefore not be sharply defined.4 To find out what the underlying principles and protectedareas of privacy are, we will take the way backwards We will analyze provisions of Europeanconstitutions and in European human rights documents with special regard to provisions thatprotect the private sphere of a person

1 Seifert, Postmortaler Schutz des Persönlichkeitsrechts und Schadensersatz – Zugleich ein Streifzug durch die Geschichte des allgemeinen Persönlichkeitsrechts, NJW 1999, 1989.

2 Warren/Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890).

3 Burkert, Privacy – Data Protection, A German/European Perspective, in: Engel/Kenneth: Governance of Global Networks in the Light of Differing Local Values, p 44.

4 ECHR Niemetz v Germany (1992) 16 EHRR 97 para 29; Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article 8 para 3.

A right to privacy or private life is recognized in nearly all constitutions of Europe as well as

in the European Convention of Human Rights and the Charter of Fundamental Rights of theEuropean Union The European Convention on Human Rights protects in article 8 the respectfor private and family life as well as for home and correspondence

Especially mentioned is a right to private- and family life or privacy in article 22 of theconstitution of Belgium, §10 section 1 of the constitution of Finland, article 9 paragraph 1 ofthe constitution of Greece, article 2 sentence 1 of the constitution of Lithuania, article 10paragraph 1 of the constitution of the Netherlands, article 47 of the constitution of Poland,article 26 paragraph 1 of the constitution of Portugal, article 19 paragraph 2 of the constitution

of Slovakia and article 18 paragraph 1 of the constitution of Spain Some constitutions protectfamilies and include therefore the protection of family life So for example article 6 paragraph

1 of the German Basic Law, article 41 paragraph 1 number 2 of the constitution of Ireland,article 29 sentence 1 of the constitution of Italy and article 11 sentence 2 of the constitution ofLuxemburg Many national constitutions contain further more provisions concerning theprotection of home as well as the secrecy of correspondence: article 15 und 29 of theconstitution of Belgium, § 72 of the constitution of Denmark, § 10 section 1 and 2 of theconstitution of Finland, article 10 paragraph 1 and article 13 paragraph 1 of the German BasicLaw, article 9 paragraph 1 sentence 1 and 2 and article 19 of the constitution of Greece, article

40 paragraph 5 of the constitution of Ireland, article 14 and 15 of the constitution of Italy,article 15 and 28 of the constitution of Luxemburg, article 12 and 13 of the constitution of theNetherlands, article 9 paragraph 1, articles 10 and 10a paragraph 1 of the Austrian State BasicLaw, article 34 of the constitution of Portugal and article 18 paragraph 2 and 3 of theconstitution of Spain.5 Some Constitutions recognize further more a fundamental right ofprotection of personal data So does § 10 section 1 sentence 2 of the constitution of Finland,article 59 of the constitution of Hungary, article 10 of the constitution of the Netherlands,article 51 of the constitution of Poland, article 35 of the constitution of Portugal, article 19paragraph 3 und article 22 of the constitution of Slovakia, article 38 of the constitution ofSlovenia, article 18 paragraph 4 constitution of Spain, chapter 2 § 3 sentence 2 and § 22number 2 of the constitution of Sweden.6

The Charter of Fundamental Rights of the European Union establishes in article 7 similar toarticle 8 of the European Convention on Human Rights a right to respect for private and

5 See Bernsdorff, in: Mayer, Kommentar Grundrechtecharte (commentary charter of fundamental rights), article

7 para 2.

6 See Bernsdorff, in: Mayer, Kommentar Grundrechtecharte (commentary charter of fundamental rights), article

8 para 3.

family life as well as for home and communication It recognizes furthermore in article 8paragraph 1 a right to protection of personal data.

The right to privacy in European fundamental rights law consists with regard to the provisionsadopted therefore of the following aspects: private life, family life, home, correspondence anddata protection The most general and most difficult one to define of these guarantees is theright to protection of private life While the others cover more specific parts of the right toprivacy, private life is a very broad term.7 And we need the interpretation of courts to knowexactly what is covered by it

The European Court of Human rights considers that there is no exhaustive definition ofprivate life.8 But he recognizes different case groups to be part of private life We will nowhave a look at what should be part of this most general provision to protect privacy according

to the courts and will then try to put these cases and the other areas protected into categories.The European Court of Human rights considers it too restrictive to limit private life to an

“inner circle in which an individual can choose to live his personal life as he chooses”9 Butalso recognizes a social aspect of private life: To “establish and develop relationships withother human beings” It is therefore a right to identity and personal development.10 The Courtrecognized as an infringement an arbitrary interference with physical and psychologicalintegrity of a person.11 Part of private life are furthermore aspects of an individual’s physicaland social identity12, it’s name13, it’s picture14, it’s individual and social identity15, thereputation of a person16, the right to ones gender17, sexual orientation and sexual life18, the

7 Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), GRCh article 7 para 3.

8 ECHR Niemietz v Germany, judgment of 16 December 1992, Series A no 251 B, p 33, para 29.

9 ECHR X v Iceland, (1976) 5 DR 86, EComm HR.

10 ECHR Odièvre/France, judgement of 13february 2003, 42326/98 para 29.

11 X and Y v the Netherlands, judgment of 26 March 1985, Series A no 91, p 11, para 22; (Glass v the United Kingdom, no 61827/00, para 70-72, ECHR 2004 II; Y.F v Turkey, no 24209/94, para 33, ECHR 2003-IX; Matter v Slovakia, no 31534/96, para 64, 5 July 1999; Worwa v Poland, no 26624/95, para 80, ECHR 2003 XI (extracts); Bensaid v the United Kingdom, no 44599/98, § 47, ECHR 2001 I.

12 ECHR Mikulić v Croatia, no 53176/99, para 53, ECHR 2002 Il; Odièvre v France [GC], no 42326/98, para

29, ECHR 2003 III.

13 ECHR Mentzen v Latvia no 71074/01, ECHR 2004-XII at pp 42-43; Burghartz v Switzerland, judgment of

22 February 1994, Series A no 280 B, p 28, para 24; Guillot v France judgment of 24 October 1996, Reports of Judgments and Decisions 1996 V, pp 1602-3, para 21-22.

14 ECHR Schüssel v Austria, no 42409/98, 21 February 2002; Von Hannover v Germany, no 59320/00, para 50-53, ECHR 2004 VI.

15 Mikulić v Croatia, no 53176/99, § 53, ECHR 2002 Il; Odièvre v France [GC], no 42326/98, § 29, ECHR

2003 III.

16 ECHR Fayed v the United Kingdom, judgment of 21 September 1994, Series A no 294 B, pp 50-51 , para 67; Chauvy and Others v France, no 64915/01, para 70, ECHR 2004 VI; Gunnarsson v Iceland (dec.), no 4591/04,

20 October 2005.

17 ECHR B v France, judgment of 25 March 1992, Series A no 232 C, p 47-54, para 43-63; Christine Goodwin

v the United Kingdom [GC], no 28957/95, para 77, ECHR 2002 VI.

18 ECHR Dudgeon v the United Kingdom, judgment of 22 October 1981, Series A no 45, p 18-19, para 41; Laskey, Jaggard and Brown v the United Kingdom, judgment of 19 February 1997, Reports of Judgments and

right to self-determination and personal autonomy (at least with regard to the end of one’slife)19, activities of a professional of business nature20, the right to data protection21,information to risk’s to one’s health22, searches and seizures23 and surveillance ofcommunications and telephone conversations24 It is important to mention that all those areasprotected are not mutually exclusive and a measure can interfere with more of them.25

So what underlying principles have all those protected areas in common? We can divide thesedifferent guarantees of privacy protection into three categories according to their purpose ofprotection The first category is the very basic aspect of the right to privacy: The right to beleft alone, as Warren and Brandeis called it26, or the right to self-seclusion27 It is the right of

an individual to seclude itself from the environment The protection of home andcorrespondence, as well as the protection of personal data therefore fit into this category Itespecially protects an individual from investigation of his private life and life in general bythe state.28 Searches and seizures and surveillance are important infringements This is the

“inner circle” protected by the right to privacy, as the European Court of Human Rights putsit

But we have seen that jurisdiction does not stop here It further more protects the right of aperson to make decisions about his own life, his gender, his sexual orientation and sexual lifeetc as part of privacy This is the right to self-determination or personal autonomy.29

Finally the right to privacy also includes a right to decide about how a person wants to be seen

by others and especially by the public The third category therefore protects the right to

self-Decisions 1997 I, p 131, para 36; A.D.T v the United Kingdom, no 35765/97, para 21-26, ECHR 2000 IX.

19 ECHR Pretty v the United Kingdom, no 2346/02, para 61 and 67, ECHR 2002 III.

20 ECHR Niemietz v Germany, judgment of 16 December 1992, Series A no 251 B, p 33, para 29; Halford v the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997 III, p 1016, para 44.

21 ECHR Rotaru v Romania [GC], no 28341/95, para 43-44, ECHR 2000 V; Amann v Switzerland [GC], no 27798/95, para 65-67, ECHR 2000 II; Leander v Sweden, judgment of 26 March 1987, Series A no 116, p 22, para 48; X v the United Kingdom, no 9702/82, Commission decision of 6 October 1982, Decisions and Reports (DR) 30, p 239, 240.

22 ECHR McGinley and Egan v the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998 III, p 1362, para 97; Guerra and Others v Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998 I, p 228, para 60.

23 ECHR McLeod v the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions

1998 VII, p 2787, para 36; Funke v France, judgment of 25 February 1993, Series A no 256 A, p 17, para 48.

24 ECHR Weber and Saravia v Germany (dec.), no 54934/00, para 76-79, 29 June 2006.

25 ECHR Menteş and Others v Turkey, judgment of 28 November 1997, Reports of Judgments and Decisions

1997 VIII, p 2711, para 73; Stjerna v Finland, judgment of 25 November 1994, Series A no 299 B, p 60, para 37; López Ostra v Spain, judgment of 9 December 1994, Series A no 303 C, p 54, para 51; Burghartz v Switzerland, judgment of 22 February 1994, Series A no 280 B, p 53, para 24; Płoski v Poland, no 26761/95, para 32, 12 November 2002.

26 Warren/Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890).

27 Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), article 7 para 5.

28 DiFabio, in: Maunz/Dürig, Kommentar GG, article 2 para 156.

29 Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), article 7 para 4.

manifestation.30 It provides protection against being publicly presented in a degrading, false orunwanted way This category covers also the right to one’s name and picture and protectionagainst defamation It protects the honor of a person.

We have found three underlying principles of the right to privacy: seclusion, determination and self-manifestation.31 A clear separation of the mentioned case groups intothese categories is nevertheless not possible Some areas might be protected because theyrelate to more than one of the before mentioned categories The right to data protection forexample protects the individual against investigations and therefore relates to self-seclusion.But at the same time it also serves the right to self-manifestation, as it guarantees a person todisclose information on his own choice.32 The categories are also connected with each other.Self-manifestation, in the meaning that a person can decide about what information aboutherself should be shared with others, is also a way of self-determination At the same time itserves the purpose of self-seclusion by protecting the private sphere It is obvious that allthree parts entail and complement each other

self-Hence the division of privacy into these three groups cannot provide a sufficient or evenclosed definition of what is the right to privacy, if such a definition is possible at all.Nevertheless it is very useful for our purposes here These three categories of protected rightsare linked with certain infringements The right of self-determination can be infringed by thestate forbidding certain behaviors or decisions related to the personal sphere, for examplecertain sexual practices.33 The right to self-manifestation can be infringed by publishing right

or wrong aspects of a person without her consent The right to self seclusion will be mostoften infringed by the state while trying to gather information for criminal proceedings orwarding off danger Hence in the following we will limit ourselves to the aspect of self-seclusion It covers all infringements made for security reasons and is the aspect which isinteresting with regard to the topic of the seminar We will exclude self-manifestation andself-determination and also family life

C Comparative perspective: The right to self-seclusion as a part of the right to privacy

We will now compare the right to self-seclusion in the European Convention on HumanRights of 4 November 1950, the German Basic Law of 23 May 1949, the Charter of

30 Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), article 7 para 6.

31 See also Schmidt, in: Erfurter Kommentar zum Arbeitsrecht (commentary on labour law), GG article 2 para 38

et sequ.

32 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary Basic Law), article 2 para 172.

33 See ECHR Dudgeon v the United Kingdom, judgment of 22 October 1981, Series A no 45, p 18-19, para 41.

Fundamental Rights of the European Union of 7 December 2007 and the Constitution of theRepublic of Poland of 2 April 1997 In these four systems we first want to compare the scope

of protection provided and what impact on the interpretation different formulations anddifferent conceptions of rights have

a The European Convention on Human Rights

We have already seen that the European Convention on Human Rights protects in article 8 foreveryone the right to respect for private life, home and correspondence We will now analyzemore detailed what is the scope and content of the protection of these rights

II Objective scope of protection

III Respect

Article 8 is formulated in a very uncommon way for the European Convention on Human

Rights It gives a right to respect a sphere of privacy It can nevertheless be clearly seen from

the context of paragraph 2 that there should be no infringement if not the exceptions statedthere are fulfilled.34 But apart from this clear negative obligation, respect means further thatthere are positive obligations for the member-states to protect privacy in a sufficient way inthe areas of legislation, jurisdiction and administration.35 The member-states are obliged toprovide the possibility for individuals to defend themselves against infringements in a fairtrial before a court.36 There must be furthermore adequate procedural guarantees to render aneffective protection possible The member states have to enact criminal law that protectsprivacy and they have to make sure that it is enforced in an effective way Finally there is also

an obligation to enforce the respect for privacy in horizontal relations between privatepersons.37 The extent of these positive obligations depends on whether the individual is able toprotect itself and whether it suffers directly from the inaction of the state.38 The fact that theterm “respect” was chosen and that the right was not simply guaranteed shows that a certainmargin of appreciation was wanted to be left open for the member states.39 This has its reasons

in the peculiarity of these rights connected with privacy The formulation admits a moredistinctive adaption to national characteristics in this area.40

34 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article 8 para 2

35 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 16.

36 ECHR X and Y v the Netherlands, judgment of 26 March 1985.

37 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article 8 para 2c; The law under the European Convention, para 12.113.

38 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 16 The law under the European Convention, para 12.111.

39 ECHR Keegan v Ireland, judgment of 26 May 1994.

40 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 16; Law under European Convention, para 12.107.

IV Private life

We have also seen that private life is the widest of the protected rights in article 8, while homeand correspondence are more specific implementations of the right to privacy.41 First we willdiscuss some general principles of private life Then we will turn to those cases of self-seclusion and analyze them more detailed

The European Convention does not contain a general freedom of action, like for example theGerman Basic Law in article 2 paragraph 1 or the Polish Constitution in article 31.1 ButArticle 8 of the Convention could be regarded as a supplemental right that applies to all areas

of life that are not protected by special guarantees Especially the Court’s jurisdiction that theright to private life protects personal autonomy and self-determination as it is stated in thecase Pretty v the United Kingdom gives reason for such an assumption.42 Nevertheless such ageneral freedom of action has never been explicitly derived from article 8 by the Court.43 Itrather protects not all human activities, but just such activities that are carried out within theprivate sphere – a sphere that comprises all areas of life that don’t concern others But thissphere is understood in a very broad sense by the court In any case activities with a distinctreference to the public sphere are not included in the protection of private life.44

Now we will focus on the following aspects that will be especially interesting with the secondpart of our paper: searches and seizures, surveillance of communications and telephoneconversations and data protection

The Court declares searches and seizures in a person’s home a clear interference with privatelife.45 But also searches in business premises were declared as an infringement, as in Niemietz

v Germany searches in a lawyer’s office The court held that there was no reason to excludeprofessional activities as in this part of life the individual has “significant […] opportunity ofdeveloping relationships with the outside world” Furthermore the court argued that it was noteasy to distinguish between those activities that are professional and those which are not.The Court recognizes as well telephone tapping and other forms of surveillance ofcommunications and areas of private space as an infringement of private life.46 It is not

41 See Papier, in: Mauz/Dürig, Kommentar GG (commentary basic law), article 13 para 1; Kingreen, in: Callies/Ruffert, Verfassungsrecht EU (constitutional law EU), article 7 para 3; Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 14.

42 Uerpmann, in: Ehlers, Grundrechte (fundamental rights), section 3 para 3.

43 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 15; see below….

44 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 19.

45 ECHR McLeod v the United Kingdom, judgement of 23 September 1998, para36.

46 Bernsdorff, in: Meyer, Kommentar Grundrechtecharta (commentary charter of fundamental rights), article 7, para 10.

important whether the surveillance is carried out by a private person, if it was made with theknowledge and consent of public authorities.47 Furthermore the mere existence of legalprovisions, allowing surveillance, constitutes interference, as “this menace necessarily strikes

at freedom of communication between users of the postal and telecommunication services”48.Measures of surveillance on police premises, in a prison cell or in visiting area of a prison areinterferences, especially if they are carried out secretly.49 The prisoners can expect a certainsphere of privacy in their cells and in a room serving the purpose of communication withvisitors.50

Concerning secret surveillance in public areas the court established the criteria whether thesurveillance is foreseeable or not It distinguished between surveillance for security reasonsand for other not foreseeable purposes.51 But private life is affected if systematic recordings ofpublic areas are made and stored in databases Hence surveillance of public places and ofdemonstrations using cameras is no infringement of private life if it is made for securitypurposes.52 But storing recordings, for example to identify suspects, amounts to aninterference with private life.53

Protection of personal data, especially of medical and social data, is as well an essential part

of the protection of private life and is of fundamental importance to a person’s enjoyment ofher right to respect for privacy.54 Infringements are for example personal information collated

by an official census, fingerprinting and photography by the police, a compulsory medicalexamination and the maintenance of medical records.55 In general it can be any collection ofdata about the private sphere But also storing and the further processing of personal data is anown interference with the right to privacy.56 But the mere obligation to carry an identity cardand to show it on request was not recognized as an infringement.57

V Home

47 ECHR A v France, judgement of 23 November 1993, Series A no 277-B, para 36; M.M v Netherlands, judgement of 24 September 2003, para 38 et sequ.

48 ECHR Klass and others v Germany, judgment of 6 September 1978, para 41.

49 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article 8 para 3b.

50 ECHR Wisse v France, judgment of 20 March 2006, para 30.

51 ECHR Wisse v France, judgment of 20 March 2006, para 26.

52 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article 8 para 3a.

53 ECHR Perry v the United Kingdom, judgment of 17 July 2003, para 38.

54 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article 8 para 11; Law under the European convention, para 12.88.

55 Clayton/Tomlinson, The law of human rights, para 12.89.

56 ECHR Z v Finland, judgment of 25 February 1997, para 70, Leander v Sweden, judgment of 26 March 1987, para 48; Weber and Saravia v Germany, judgment of 29 June 2006, para 79; Amann v Switzerland, judgment of

16 February 2000, para 70; Rotaru v Romania, judgment of 4 May 2000, para 46.

57 Filip Reyntjens v Belgium (1992) 73 DR 136.

The scope of home has to be defined autonomous and doesn’t rely on definitions in nationallaw Whether something can be qualified as home depends on the factual circumstances.There has to be a sufficient and continuous link to a specific place, but it is not required thatthe place was occupied or rented out for a certain time.58 It has to be taken into considerationthat the word “domicile” in the French version is broader than the English word “home”.59

Covered are owner-occupied and rented flat as well as business premises (see private life)including branches60 It also covers uncommon residences like caravans.61 Houses belonging

to others can be protected if they are occupied for significant periods and regularly.62 Cells ofprisoners are not included.63 Infringements are searches and surveillance, including telephoneconversations at home

VI Correspondence

Correspondence covers according to the court not only letters but all forms of privatecommunications The confidentiality of telephone conversations64, pager messages65, e-mails66, private radio67 and other forms of communication are protected The content ofcorrespondence is irrelevant It does not have to be personal in nature.68 And there is no deminimis principle for interference69 Thus opening a letter is enough for constituting aninterference

VII Subjective scope of protection

According to article 8 everyone has the right to privacy Whether companies can be subject tothis right is arguable.70

h The German Basic Law

58 ECHR Mentes and Others v Turkey, judgment of 28 November 1997, para 73; Klass and Others v Germany, judgment of 6 September 1978, para 41; López Ostra v Spain, judgment of 9 December 1994, para 51; Maragreta and Roger Andersson v Sweden, judgment of 25 February 1992, para 72; Buckley v United Kingdom, judgment of 25 September 1996, para 52-54; Prokovich v Russia, judgment of 18 November 2004, para 36; Buck v Germany, judgment of 28 April 2005, para 31.

59 Sallinen and Others v Finland, judgment of 27 September 2005, para 70.

60 ECHR Société Colas Est and Others v France, judgment of 16 April 2002, para 41.

61 ECHR Buckley v the United Kingdom, judgment of 25 September 1996, para 34.

62 ECHR Mentes and Others v Turkey, judgment of 28 November 1997, para 73.

63 Meyer-Ladewig, in: Meyer-Ladewig, Kommentar EMRK (commentary ECHR), article 8 para 34.

64 ECHR Klaas and Others v Germany, judgment of 6 September 19878, para 41.

65 ECHR Taylor v the United Kingdom, judgment of 22 October 2002.

66 ECHR Copland v the United Kingdom, judgment of 3 July 2007, para 42.

67 ECHR X and Y v Belgium, Comission decision of 13 May 1982.

68 ECHR A v France, judgment of 25 June 1997, para 35 and 37; The law under the European Convention, para 12.104.

69 ECHR Narinen v Finland, judgment of 1 June 2004, para 32.

70 Clayton/Tomlinson, The Law of Human Rights, para 12.83.

The German Basic law originally nowhere recognizes a right to privacy Article 2 paragraph 1guarantees the right to free development of one’s personality But even though by its wording

it seems to be connected with a personal right to privacy, the Federal Constitutional Courtstarting with the Elfes-judgment developed it as a general freedom of action.71 The Basic lawjust contains in article 10 paragraph 1 the privacy of correspondence, posts andtelecommunications and in article 13 paragraph 1 the inviolability of the home Neverthelesslegal doctrine and jurisdiction have developed a universal right to personality

1 Universal personal right

The universal personal right is a “fundamental right within a fundamental right” It isaccording to the jurisdiction of the Federal Constitutional Court situated in article 2 paragraph

1 in connection with article 1 paragraph 1, which protects human dignity It was firstdeveloped by the Federal Court of justice for civil law relations72 with regard to article 2 and 1

of the Basic Law The Federal Constitutional Court first partly recognizes an additionalpersonal right in article 273 and then developed a universal personal right The universalpersonal right has a supporting character and protects those areas that are not protected by aspecific guarantee of personal rights It is especially important where due to technicalinnovations new dangers to human personality arise.74 The universal personal right is oftensaid to be a new unnamed fundamental right that is independent of the general freedom ofaction in article 2 paragraph 1.75 But in fact both are very closely connected Active andpassive protection of personality are linked and require each other.76 For the general personalright article 2 paragraph 1 is always cited together with article 1 paragraph 1 to show the closeconnection of this right with human dignity But an infringement not automatically means thatarticle 1 paragraph 1 is also infringed Otherwise a justification of this infringement into theuniversal personal right would not be possible, as human dignity is inviolable and thereforeunder absolute protection by the Basic Law But the universal personal right protects apersonal sphere that is free of state intervention77 and that must under certain conditions beprotected by the state against interventions of third parties78 This sphere is speciallyconnected with human dignity and article 1 paragraph 1 therefore influences the interpretation

of this right The deeper an infringement of a the universal personal right is, the closer it gets

71 See for example BVerfGE 6, 32 (37).

72 BGHZ 13, 334 et sequ ; 24, 72 et sequ ; 27, 284 et sequ.; 30, 7 (10); 35, 363 et sequ.; 39, 124 et sequ.

73 See BVerfGe 6, 32 (41); 4, 7 (15 et sequ.); 8, 274 (329).

74 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article 2 para 127.

75 Jarass, Das allgemeine Persönlichkeitsrecht im Grundgesetz (The universal personal right in the Basic Law), NJW 1989, 857 (858/859).

76 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article 2 para 128.

77 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article 2 para 132 et sequ.

78 DiFabio, in: Maunz/Dürig, Kommentar GG (commentary basic law), article 2 para 135 et sequ.