Data Protection – is there a bridge across the Atlantic? (3/4) – The Right to Privacy in the Light of Media Convergence –

to investigate, to react on infringements and to sue in case of violation of the
Directive. On the other hand, the European Data Protection Commissioner
supervises as a special independent institution violations committed by the
Overall, we can see that the density of explicit provisions on data protection
is higher in Europe compared to the United States.
This applies already to the
constitutional protection of privacy. For instance, the right to respect for private
and family life is expressly protected by virtue of Art. 8 of the European Conven-
tion on Human Rights (ECHR). The ECHR is classied as a binding international
treaty on behalf of third persons, namely the individuals protected, between the
47 Member States of the Council of Europe.
As a precondition for an accession
to the Council of Europe by now, the states have to commit themselves to follow
the human rights obligations. Alongside, the Member States partially provide
own explicit constitutional guarantees for the protection of privacy or the data
Moreover, the European Court of Justice (ECJ) developed so called
fundamental Union rights for the Member States of the European Union (EU),
that are binding as general principles of law. As a basis, the ECJ consults on the
one hand the dierent constitutional traditions of the Member States by means
of a evaluating comparison and on the other hand the ECHR as a Human Rights
Convention, that has been ratied by all Member States of the EU and therefore
also constitutes the comparatively high minimum human rights standard for
the European Union. The fact that those developed fundamental Union rights
were not laid down in a separate catalogue was criticized as a shortcoming in
58 Cf. on this the regulations in Art. 41 to 48 of the Regulation No. 45/2001 by the European
Parliament and the Council of 18 December 2000 on the protection of individuals with regard to
the processing of personal data by the community institutions and bodies and on the free
movement of such data, ABl. No. L 008, 12 January 2001, p.122. See also the website of the
European Data Protection Commissioner at (Mai 23,
59 Dorothee Heisenberg, Negotiating Privacy, The European Union, the United States, and
Personal Data Protection, Boulder/London 2005, p.165 et seqq. considers this the main
dierence between Europe and the United States. The lack of a coherent privacy law is traced
back by her to the strong inuence of business on legislation in the United States. Contrarily, in
Europe primarily representatives of data protection interests were heard.
60 See for a list of the Member States of the Council of Europe
index.asp?page=47pays-1europe (Mai 23, 2011).
61 The German Grundgesetz (GG) does not contain an explicit right to privacy or data
protection. The Constitutional Court deduces from the general freedom of action according to
Art.2 para.1 GG in combination with the guarantee of human dignity according to Art.1 para.1
GG a general personality right though, and the right to privacy of personal information as a
specic variation.
Data Protection is there a bridge across the Atlantic?
transparency for the citizens in Europe. Consequently, the European Union now
created an own document on fundamental rights, the Charter of Fundamental
Rights of the European Union.
The Art. 7 of the Charter lays down the respect
of private and family life nearly identically with Art. 8 ECHR, additionally the
Charter provides for the protection of personal data in its Art. 8. The Art. 8 of the
Charter of Fundamental Rights of the European Union thereby constitutes a
particular case of the general protection of privacy according to Art. 7 of the
Charter. Insofar it is a novelty that an explicit right to data protection was created
on the European level. However, this does not necessarily entail substantial
changes. It rather remains to be seen how the ECJ will interpret the new
guarantee of data protection. At least, it is generally agreed that the right to data
protection involves a third-party eect.
The right has on one side the tradi-
tional defensive role to protect citizens against the state, but it also can obligate
the Member States to take action. The States thereby regularly have a consider-
able scope of discretion.
Contrarily, the US-American Constitution does not know an explicit right to
privacy or data protection, whereas the Constitutions of some US-States recog-
nize expressly a right to privacy.
Despite the lack of an express regulation
privacy is not deprived of constitutional protection on the federal level. Instead
certain aspects of the right to privacy are covered by the freedom of speech
guaranteed by the First Amendment, while other aspects are covered by the
protection of the Fourth Amendment that grants protection against unreasonable
searches and seizures.
The absence of a comprehensive right to privacy in the
US-Constitution does not mean that the constitutional guarantee is minor. For
instance the German Grundgesetz (Constitution) does neither contain an explicit
right to privacy but covers the di erent aspects of the right separately, as by
Art. 13 of the German Grundgesetz (GG) the sanctity of the home, the condenti-
ality of telecommunication by Art. 10 GG or the general personality right by Art. 2
para. 1 in connection with Art. 1 para. 1 GG, including the right to ones own
62 Charter of fundamental rights of the European Union in the version after the Treaty of Lisbon
came into force, 2010/C 83/02, ABl. C 83/389, March 30, 2010.
63 Cf. e.g. Thorsten Kingreen, Art.8 Grundrechte-Charta, in: Christian Calliess/Matthias Ruert,
EUV/EGV, Das Verfassungsrecht der Europäischen Union, 4th Edition, München 2011, marginal
64 See Dorothy J. Glancy, At the Intersection of Visible and Invisible Worlds: United States
Privacy Law and the Internet, Santa Clara Computer and High Technology Law Journal 357 (May,
2000), p.1, 6.
65 More on this Avner Levin/Mary Jo Nicholson, Privacy Law in the United States, the EU and
Canada: The Allure of the Middle Ground, University of Ottawa Law & Technology Journal 2:2
(2005), p.357, 367 et seqq.
368 Stephanie Schiedermair
image and word. The scope of protection by the right to privacy depends from
the Expectation of Privacy, the reasonable expectation a citizen can have with
regard to the protection of his private life.
For example it was held in the
famous Supreme Court decision Katz v. United States
that one can expect to be
private during a phone call from a public phone box. By contrast, a citizen
cannot expect privacy of the data he voluntarily makes available to his bank,
e.g. the information contained in a cheque.
In the case Holmes v. Petrovich
Development Co. from January 13, 2011 the California Court of Appeal decided
on the legitimate expectations of data protection by employees.
In the estima-
tion of the Court of Appeal the employee suing could in this case not rely on the
content of emails sent to his lawyer to remain condential. The company ex-
pressly prohibited the private use of business computers and pointed out that
the compliance with this prohibition would be observed and that for this purpose
documents and emails could be checked. Furthermore the employee concerned
was expressly advised in person that employees who stored personal informa-
tion on a business computer could claim no right to privacy.
66 Cf. e.g. Dorothy J. Glancy, At the Intersection of Visible and Invisible Worlds: United States
Privacy Law and the Internet, Santa Clara Computer and High Technology Law Journal 357 (May,
2000), p.1, 4 et seq. The ECHR also took into account the reasonable expectation of privacy as
the central criterion in its decision Halford v. United Kingdom from June 25, 1997, marginal
no.45, that involved the surveillance of a telephone expressly provided for private
communication at work, cf. the decision at
en (Mai 24, 2011). In the famous judgment in the Princess Caroline of Monaco Case the ECHR
also applied the criterion of
reasonable expectation of privacy with reference to its Halford Case, see ECHR, Hannover v.
Germany from 24 June 2004, marginal no. 51, at
(Mai 24, 2011).
67 See Katz v. United States, 389 U.S. 347, 1967, p.353, 361.
68 Cf. United States v. Miller, 425 U.S. 435, 1976, p.441 et seqq. For the generally contrasting
approach to
the protection of nance data in the US and in Europe cf. James Q. Whitman, The two Western
Cultures of Privacy: Dignity versus Liberty, The Yale Law Journal Vol. 113 (2004), p.1151, 1190
et seqq.
69 Court of Appeal of California, Third Appellate District, Holmes v. Petrovich Development Co.,
January 13, 2011, C059133, (Mai 24, 2011). On
this Clemens Kochinke, Länderreport USA, K&R 2011, p.183.
Data Protection is there a bridge across the Atlantic?
F. The jurisd iction about privacy and data
protection: a tendency to disagree
Between the European legal area and the United States fundamental dierences
concerning the protection of privacy and data protection appear. It can be
observed that the European jurisdiction gives more priority to the protection of
privacy at least in tendency. Two examples from jurisdiction emphasize this
tendency: For instance the European Court for Human Rights had to balance the
protection of privacy/private life according to Art. 8 ECHR versus the freedom of
speech according to Art. 10 ECHR in his Caroline decision. The Court came to the
conclusion, that the pictures taken secretly and published in a magazine con-
cerned the private sphere of the Claimant Caroline of Monaco and would only
represent a violation of privacy justied by the freedom of the press if they would
contribute to a debate with general public interest.
In the case at hand the
ECHR decided this was not the case, since the pictures were of private nature,
showing Caroline at a store or covered in a towel at the Monaco Beach Club.
The ECHR thereby overruled a decision by the German Constitutional Court that
had considered the publishing of the pictures to conform for the most part to the
There is no room for a comprehensive analysis how a case with
similar circumstances would be judged in the United States. However it must be
noted that the freedom of speech and the freedom of the press derived thereof
enjoy a high priority in the United States.
A constellation as in the Case of
Caroline of Monaco in the American law would be subject to the right of
70 See ECHR, Rs.59320/00, Hannover v. Deutschland, Decision from June 24, 2004, marginal
no.50 et seqq.
71 Ibid., marginal no.7681. On this decision e.g. Peter J. Tettinger, Steine aus dem Glashaus,
JZ 2004, p.1144 et seq.; Alexander Behnsen, Das Recht auf Privatleben und die Pressefreiheit
Die Entscheidung des Europäischen Gerichtshofs für Menschenrechte in der Sache Hannover ./.
Deutschland, ZaöRV 2005, p.239, 245 et seqq.
72 Cf. BVerfGE 101, 361, 386 et seqq. Concerns were risen by the Constitutional Court only
with regard to the pictures showing Caroline with her children. The Court held that the position
of personal protection of the Claimant was strengthened in the case of the family involvement
by Art.6 GG, that grants the right to respect of familiy life, cf. ibid. p. 395 et seq.
73 Cf. e.g. the decision by the U.S. Supreme Court from February 24, 1988, Hustler Magazine v.
Falwell, 485 U.S. 46, 1988, p.86 et seqq., that held that the free-speech guarantee prohibited
an award of damages with regard to an oensive parody, and in contrast the decision by the
German Constitutional Court on the admittedly particularly oensive caricature of the then
Bavarian Governor Franz Josef Strauß as a copulating pig, BVerfG, 1 BvR 313/85, order from
June 3, 1987, BVerfGE 75, 369, 376 et seqq.
370 Stephanie Schiedermair
publicity. In the fundamental decision on the right of publicity from
June 28, 1977 the Supreme Court reversed the judgment of the lower court. The
background of the decision was a dispute about a performance by a human
cannonball. A reporter had lmed the performance although the showman had
prohibited it beforehand. The Court held unlike the court of lower instance:
The First and Fourteenth Amendments do not immunize the news media when
they broadcast a performers entire act without his consent , and the Constitution
no more prevents a State from requiring respondent to compensate petitioner for
broadcasting his act on television than it would privilege respondent to lm and
broadcast a copyrighted dramatic work without liability to the copyright owner,
or to lm or broadcast a prize ght or a baseball game, where the promoters or
participants had other plans for publicizing the event. The right of publicity has
to be understood as an economic right:
The protection of petitioners right of
publicity provides an economic incentive for him to make the investment re-
quired to produce a performance of interest to the public. Accordingly, the
person concerned may claim damages for the economic harm from the press. A
compensation for personal suering cannot be claimed on the contrary. The
Supreme Court stated:
Although the State may, as a matter of its own law,
privilege the press in the circumstances of this case, the First and Fourteenth
Amendments do not require it to do so.
The second example concerns the extension of the right to privacy to legal
entities.The US Supreme Court generally showed a reserved attitude in a judgment
from March 1, 2011. A company led a suit against the entitlement to access
documents of the company. The Freedom of Information Act provides that access
can be denied if it would entail an unwarranted invasion of personal privacy.
The company pleaded this exception of the general right of information, but did
not succeed before the Supreme Court. The Court held on March 1, 2011, that
companies do not enjoy personal privacy in the sense of the exception.
European Court of Human Rights decided dierently in its judgment Société Colas
Est in 2002. In this decision the Court included the business premises of a
company in the protection of the sanctity of home guaranteed by Art. 8 ECHR.
74 Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 1977, p.562, 569 seqq.
75 Ibid., p.563, 576 et seq.
76 Ibid., p.563, 578 et seq.
77 Cf. Exemption 7(C) Freedom of Information Act, Public Law No. 104231, 110 Stat. 3048, (Mai 24, 2011).
78 Federal Communications Commission v. At&T, 562 U.S., 2011.
79 Cf. ECHR, Rs. 37971/97, Decision from April 16, 2002, Société Colas Est u.a. v. France, Rec.
40 .
Data Protection is there a bridge across the Atlantic?