Where is the Harm in a Privacy Violation? Calculating the Damages Afforded in Privacy Cases by the European Court of Human Rights
| Author | Bart van der Sloot |
| Pages | 322-351 |
2017
Bart van der Sloot
322
4
Where is the Harm in a Privacy Violation?
Calculating the Damages Afforded in Privacy Cases by the
European Court of Human Rights
by Bart van der Sloot*
© 2017 Bart van der Sloot
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Ba rt van der Sloot, Where is the Harm in a Privacy V iolation? Calculating the Damages Afforded in
Privacy Cases b y the European Court of Human Rights, 8 (2017) JIPITEC 322 par a 1.
Keywords: Privacy; harm; damage; financial compensation; statistical analysis
the daily life of citizens on the corner of almost every
street? There has been a longstanding debate within
the literature regarding whether ‘dignitary’ or ‘imma-
terial’ harm should be protected under the right to
privacy. Or should only harm that can be measured
and quantified in monetary terms (economic harm)
be taken into account? This article takes a descriptive
and statistical approach to provide an insight into
what types of damages are awarded, how they are
calculated, and how the damages relate to the type
of harm that is inflicted. It does so by analysing the
damages awarded by the European Court of Human
Rights with respect to privacy violations.
Abstract: It has always been difficult to pin-
point what harm follows a privacy violation. What
harm is done by someone entering your home with-
out permission, or by the state eavesdropping on a
telephone conversation when no property is stolen
or information disclosed to third parties? The ques-
tion is becoming ever more difficult to answer now
that data gathering and processing initiatives have
grown and are no longer focused on specific indi-
viduals, but on large groups or society as a whole.
What specific harm is done by the NSA and other in-
telligence services gathering data on almost every-
one or by the thousands of CCTV cameras registering
A. Introduction
1
In the eld of privacy, the notion of harm has
always been problematic as it is often difcult to
substantiate the harm a particular violation has
caused, e.g. what harm follows from entering a home
or eavesdropping on a telephone conversation as
such when neither objects are stolen nor private
information disclosed to third parties? Even so,
the traditional privacy violations (house searches,
telephone taps, etc.) were often clearly demarcated
in time, place, and person, and the effects are
therefore relatively easy to dene. In the current
technological environment with developments such
as Big Data, however, the notion of harm is becoming
increasingly problematic.1 Often, an individual is
* Senior Researcher at the Tilburg Institute for Law,
Technology, and Society (TILT), Tilburg University,
Netherlands.
simply unaware that his personal data are gathered
by either his fellow citizens (e.g. through the use
of smartphones), by companies (e.g. by tracking
cookies), or by governments (e.g. through covert
surveillance). And if an individual does go to court to
defend his rights, he has to demonstrate a personal
interest, i.e. personal harm, which is a particularly
problematic notion in Big Data processes, e.g. what
concrete harm has the data gathering by the National
Security Agency (NSA) done to an ordinary American
or European citizen?2
1 The standard work on harm: J. Feinberg, ‘Harm to Others’,
Oxford University Press, Oxford, 1984. J. Feinberg, ‘Offense
to Others’, Oxford University Press, Oxford, 1985. J.
Feinberg, ‘Harm to self’, Oxford University Press, Oxford,
1986. J. Feinberg, ‘Harmless Wrongdoing’, Oxford University
Press, Oxford, 1988.
2 B. van der Sloot, ‘Privacy as virtue’, Intersentia, Alphen aan
de Rijn, 2017.
Where is the Harm in a Privacy Violation?
2017
323
4
2
This example shows the fundamental tension
between the traditional legal and philosophical
discourse and the new technological reality – while
the traditional discourse is focused on individual
rights and individual interests, data processing often
affects a structural and societal interest and in many
ways transcends the individual. This article will
analyse how the European Court of Human Rights
(ECtHR) determines harm and compensation for
harm with respect to infringements on the right to
privacy as entailed in the European Convention on
right to respect for his private and family life, his
home and his correspondence. 2. There shall be no
interference by a public authority with the exercise
of this right except such as is in accordance with
the law and is necessary in a democratic society
in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights
and freedoms of others.’3
3 In order to gain such insights, a number of factors
have been distinguished.4 First, it is important that
under the ECHR, the European Court of Human
Rights (ECtHR) may grant three types of damages.
First, compensation may be granted for the costs
of the legal procedure itself – lawyers, travel costs,
gathering documents, etc. Second, the Court may
award damages for direct, material harm. For
example, due to a privacy violation, a person has
lost his job; or, when the police raids the home of a
person without a warrant, they destroy a number of
items in that home or damage the property. In such
cases, nancial compensation may be awarded to
the victim in the form of pecuniary damages. Third,
the ECtHR may award non-pecuniary damages, for
what could be qualied as dignitary harm. Examples
may be the very fact that the state or governmental
ofcial obtained certain personal information,
even though that information has not been used or
abused; or, the bodily or psychological integrity of
a person is violated.
4
This article shows four things in particular. First,
that the privacy approach under the European
Convention on Human Rights stands in contrast with
other jurisdictions, such as the American example,
where privacy is mainly protected through tort
law and applied primarily in horizontal relations.
5
3 echr.coe.int/Documents/Convention_ENG.
pdf>.
4 This article is the rst output which will result in a book;
the explicit goal is to gather comments and suggestions on
the approach, methodology and results that are produced.
The database is still preliminary and may contain marginal
errors, which will nevertheless unlikely have a substantial
impact on the gures featured.
5 J. Q. Whitman, ‘The Two Western Cultures of Privacy:
Although tort law can in principle be used to award
damages for dignitary harm, mostly, there has been
a tendency in the United States to focus on material
damages.6 Under the European Convention on Human
Rights, privacy is not approached as a concept that
plays a role in horizontal relationships (for example
between a consumer and a company), but in vertical
relationships (between a citizen and a state). Privacy
is approached as a human right, which the Court
stresses is a concept that protects the autonomy,
dignity, and personality of citizens.7 Consequently,
an analysis of the case law of the European Court
of Human Rights shows how immaterial damages
are calculated and in which types of cases they are
granted.
5
privacy are provided protection. The provision
contains four concepts, namely private life, family
life, home, and correspondence. Correspondence
relates, for example, to the secrecy of letters and
the freedom from eavesdropping on telephone
conversations.
8
The protection of the home, protects
citizens from states and governmental ofcials
entering their home without a warrant.9 Family life
refers to the sanctity of the relationship between
children and parents in particular, but may have a
larger scope depending on the context. This concept
protects, inter alia, against children being placed out
of home, when that is not absolutely necessary. It
also entails that parents should always be allowed
to see their children, even, for example, when they
are in prison.10 The notion of private life is the
broadest of all – which will be explained in more
detail below – and refers to concepts such as bodily
integrity, the protection of one’s personality and
one’s reputation.11 Finally, a new type of privacy has
been developed by the ECtHR, which is economical
privacy. This concept plays a role when material
harm is inicted, such as when the home is destroyed
by an army, when property is conscated, or when
someone is red from work.
Dignity Versus Liberty’ (2004) 113 The Yale Law Journal.
6 P. M. Schwartz & D. Solove, ‘Reconciling Personal
Information in the United States and European Union’,
California Law Review, 102, 2013.
7 B. van der Sloot, ‘Privacy as human ourishing: could a shift
towards virtue ethics strengthen privacy protection in the
age of Big Data?’, JIPITEC, 2014-3, p. 230-244.
8 .
9 echr.coe.int/Documents/Admissibility_
guide_ENG.pdf>.
10 echr.coe.int/Documents/Admissibility_
guide_ENG.pdf>.
11 B. van der Sloot, ‘Privacy as personality right: why
the ECtHR’s focus on ulterior interests might prove
indispensable in the age of Big Data’, Utrecht Journal of
International and European Law, 2015-80, p. 25-50.
To continue reading
Request your trial