Exploring the Impact of Article 8 of the European Convention on Human Rights on Online Privacy Rights

Human Rights in a Online World

Article 8 of the European Convention on Human Rights[1] (Article 8) protects an individual's right to private life, which has been litigated extensively over the years.[2] More recently, new technologies have increasingly threatened the right to private life. This piece will look at how digital surveillance is impairing the rights of individuals. Firstly, with the increased use of artificial intelligence, surveillance can be increased drastically to a level that has not been seen before. Secondly, with the increase in big technology companies that hold vast amounts of user data and our use of them in our daily lives, more private information can be collected and processed. Finally, this piece will explore state-based surveillance, often used for crime prevention under the guise of the war on terror. This has been a growing issue since the Industrial Revolution. It was first discussed in 1890 when the Harvard Law Review was concerned about the invention of cameras being able to take photos and the advent of journalists being able to include them in their papers.[3] Today, in the 21st century, with people as connected as ever, the right to private life is under extreme threat.

With the prevalence of Artificial Intelligence (AI) in our daily lives, the ability to undertake tasks more efficiently and effectively has increased exponentially. AI has given us the ability to do things that we did not think were possible. However, one of the concerns with AI is its ability to process large amounts of data. Data that humans may have traditionally collected and processed can now be used for learning and processing at a much larger scale. The right to private life is under threat as private information can be processed faster, meaning more data can be collected and analysed to build up patterns. An example of this is CCTV, which is used extensively in cities now. Using an artificial intelligence algorithm makes it much easier to track what you are doing and where you are going based on your biometrics, which was previously not possible. While the ECHR[4] was created many years ago, it is a living document that must be interpreted in current-day conditions. Article 8, therefore, has expanded to digital technologies, especially in private correspondence.[5] However, as with any document, interpretation is complex, and the rights are unclear and slow to change. With the advent of artificial intelligence, it is now possible to collect and process more personal data, increasing the scope of breaching individual protection.

Large technology companies (also known as big tech) have recently been increasing individual data collection. These companies make money using private user information collected when their apps are used (primarily for advertising).[6] More recently, we have seen scandals such as Cambridge Analytica, where mass amounts of data from Meta (Facebook at the time it occurred) were processed without the individuals' consent.[7] This scandal spotlighted social media platforms and what they do with the data we give them.[8] Similarly, Article 8 protects the privacy of our personal lives, and it can be argued that social media encompass our individual lives, especially when sensitive content such as photos of our children is for family and not for the public (correspondence is included in the protection).[9] Similarly, we see an explosion in workplace surveillance as the increase in work-from-home; companies are attempting to monitor their employees more closely for productivity and economic purposes.[10] This can include monitoring network traffic and keystrokes. This can be a clear breach of the protection, though, as it protects the privacy of home life, and individuals are expected to have a higher level of privacy in their homes, as seen in Neimietz.[11] Smart homes are becoming increasingly common, where we bring in technology to help manage our private lives and home appliances, such as the Internet of Things (IoT). These tools can listen in and process our information with algorithms fed back to a private company.[12] This shows that privacy in our home is not guaranteed. This right is under threat from private companies and big technology firms that can make money off individual information. With the ease of setting up and using these devices, it is becoming increasingly necessary to introduce new technology in our lives to stay up to date with changing society.

States have increasingly been using new technologies to spy and collect intelligence from individuals under the guise of crime prevention and national security, which the article may allow under its exception provision.[13] One invention in the last few decades has been DNA testing and matching, allowing states to collect evidence much more efficiently and hold people accountable for their actions. The downside to this is that DNA is personal and identifiable (it also cannot be changed). As seen in S v Marper,[14] the police attempted to retain DNA indefinitely to help them in future cases. However, the court found this to be a clear breach of Article 8 due to the lack of proper protections and not being a proportionate reason for keeping the data indefinitely. This highlights the conflicts that are emerging from these new technologies, and with the “war on terror”, states have been using these exceptions to monitor civilians closer and more often.

In the 21st century, the rights of individuals under Article 8 to have their privacy protected are coming under increasing threat as we allow more technology into our homes, artificial intelligence processing power increases, state surveillance increases, and big technology companies can profit from individuals' private data. It is imperative that we ensure that the right under Article 8 is continually updated by the courts to reflect current day standards.

Bibliography:

European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) art 8.

Big Brother Watch and Others v United Kingdom (2021) ECHR 581.

Warren SD and Brandeis LD, '‘The Right to Privacy’' (1890) 4 Harvard Law Review 193.

‘Why Data Privacy Should Matter to Advertisers’ (Forbes, 9 November 2022) https://www.forbes.com/councils/forbesbusinessdevelopmentcouncil/2022/11/09/why-data-privacy-should-matter-to-advertisers/.

‘Cambridge Analytica - A Case Study’ (2019) 12 Indian J Sci & Tech https://doi.org/10.17485/ijst/2019/v12i29/146977.

BBC News, ‘How Your Personal Data Is Being Scraped from Social Media’ (15 July 2021) https://www.bbc.com/news/business-57841239.

Equality and Human Rights Commission, ‘Article 8: Respect for Your Private and Family Life’ (24 June 2021) https://www.equalityhumanrights.com/human-rights/human-rights-act/article-8-respect-your-private-and-family-life.

Barbulescu v Romania (2017) ECHR 754.

Niemietz v Germany (1992) 16 EHRR 97.

Office of the Victorian Information Commissioner, ‘Internet of Things and Privacy – Issues and Challenges’ (12 September 2020) https://ovic.vic.gov.au/privacy/resources-for-organisations/internet-of-things-and-privacy-issues-and-challenges/.

R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, [2020] 1 WLR 672.

S and Marper v United Kingdom (2008) 48 EHRR 50.

This piece was originally submitted by William Cook to the University of Exeter.

[1] European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) art 8.

[2] Big Brother Watch v UK (2021) ECHR 581.

[3] Samuel D. Warren and Louis D. Brandeis, 'The Right to Privacy' (1890) 4 Harvard Law Review 193.

[4] ECHR, art 8.

[5] Big Brother Watch v UK (2021) ECHR 581.

[6] ‘Why Data Privacy Should Matter to Advertisers’ (Forbes, 9 November 2022) https://www.forbes.com/councils/forbesbusinessdevelopmentcouncil/2022/11/09/why-data-privacy-should-matter-to-advertisers/.

[7] ‘Cambridge Analytica – A Case Study’ (2019) 12 Indian J Sci & Tech https://doi.org/10.17485/ijst/2019/v12i29/146977.

[8] ‘How Your Personal Data Is Being Scraped from Social Media’ (BBC News, 15 July 2021) https://www.bbc.com/news/business-57841239.

[9] ‘Article 8: Respect for Your Private and Family Life’ (Equality and Human Rights Commission, 24 June 2021) https://www.equalityhumanrights.com/human-rights/human-rights-act/article-8-respect-your-private-and-family-life.

[10] Barbulescu v Romania (2017) ECHR 754, [2017] ECHR 742.

[11] Niemietz v Germany (1992) 16 EHRR 97.

[12] ‘Internet of Things and Privacy – Issues and Challenges’ (Office of the Victorian Information Commissioner, 12 September 2020) https://ovic.vic.gov.au/privacy/resources-for-organisations/internet-of-things-and-privacy-issues-and-challenges/.

[13] R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, [2020] 1 WLR 672.

[14] S and Marper v United Kingdom (2008) 48 EHRR 50.