In the past year, there has been a lot of discussion about the intervention of governments in our personal lives. Think, for example, of the collection of our location via the telephone network in the context of prevention against Corona infections. The European Court of Justice has made a few interesting rulings on this subject that were recently (re)confirmed.
Again, the Court of Justice has ruled that national legislation allowing governments unrestricted access to personal data, such as telephone usage and location data, is incompatible with the European Convention on Human Rights and the Directive on Privacy and Electronic Communications. Authorities that make such arrangements for the purpose of prevention, or for example a general investigation into potential crimes, are in breach of the European Convention on Human Rights. The use of these means is only permitted within the framework of specific investigation procedures aimed at serious crime or serious threats to public security. Only those investigation methods are permitted where, in specific cases, serious crime is being investigated in a targeted manner and only with the authorisation of an independent judge.
The background to these restrictions on the power of governments is clear. They want to prevent abuse. They also want to ensure that citizens under investigation are not deprived of guarantees, namely that an independent court will balance the interests of all the rights and obligations involved. Such investigations must have a specific purpose, be proportionate and may not be applied arbitrarily.
The above applied in practice also calls into question the regulations created to restrict freedom on public health grounds or to check travellers’ compliance with quarantine.
The European Court has thus taken a clear position that citizens do not have to give up their privacy so that governments can more easily enforce offences. Big Brother – at least for the time being in the European Court of Justice – is not allowed any space.
Whether this will, in practice, stop governments from intervening ever further in personal privacy is questionable. The past year has been a good example of how governments use fear to manipulate public opinion and restrict the individual’s right to self-determination. Governments seem to be able to do this with impunity if they justify the privacy-invading measures as a security measure. Before the European Court has a chance to rule on this, years will have passed. Perhaps we will then be on the eve of the outbreak of a new virus that will turn the world upside down and sanctify all means at the expense of the right to self-determination.
Roeland van Passel