Origins, Value and the Problem of Defining the Right to Privacy
Lami Bertan TOKUZLU
Introduction
Privacy is a fundamental right recognized in most major international treaties on human rights. As a result of developments in information technology, however, the threat to the right to privacy has become more intensive and global nowadays. The ECHELON system1, a global network designed to intercept and subject to automated analysis virtually all telephone, e-mail and fax traffic in the world despite laws in many countries barring such activity, best illustrates the nature of the threat in question. Therefore, the need for harmonizing national laws and introducing international standards has become more pressing recently, despite prevailing pessimism due to the rising loss of privacy.
European countries gradually harmonized their privacy laws in the second half of the Twentieth Century especially after the adoption of the European Convention on Human Rights. In this regard, the efforts of the Council of Europe, the European Union, United Nations High Commissioner on Human Rights and OECD are noticeable. As a result, privacy has been recognized in all European countries as a fundamental right. On the other hand, despite these efforts, there still remain considerable differences between national laws on the right to privacy of European countries. Moreover, the scope of the right to privacy today has developed in such a way that it applies to issues including sexual choice, protection of reputation, telephone tapping, searching of homes, environmental pollution, protection of personal data, family relations, protection of surname, deportation of migrants, medical tests, abortion rights etc. Therefore, the right to privacy is becoming an increasingly challenging topic for scholars both as a separate, free standing right which may easily be confused with rights protecting similar interests and as a coherent right with its own protected framework. In this regard, this paper intends to contribute to the scholarly work on this topic by focusing on the theoretical framework of the right with limited positive law input in line with the current developments throughout Europe.
The paper consists of three parts. The first is devoted to the analysis of different theories on the origins of the right to privacy from a sociology/anthropology and legal history perspective. The second part contains three different theories on the value of the right to privacy and the theoretical discussions thereon. Finally, the third part is devoted to the analysis of different theories defining the right to privacy and the problems encountered in this regard. As a result of this analysis, a model for a definition is proposed and this model is used to set forth the common parameters on the right to privacy in European positive law.
