Privacy: Primus Inter Pares Privacy as a Precondition for Self-Development, Personal Fulfilment and the Free Enjoyment of Fundamental Human Rights

Abstract

The General Data Protection Regulation (GDPR) is Europe’s new approach to enhance privacy as it promises to enforce harmonised data protection standards in the Member States. However, even though the regulation has the dedicated goal to enhance privacy, it also tries to balance competing rights, such as the free flow of data, transparency, national security and overriding economic interests. As a result, the supervisory authorities will determine new data protection standards. Their assessment and how they evaluate the importance of privacy will be the benchmark. However, supervisory authorities will argue from a standpoint that assumes that all competing interests are equal. By analysing and interpreting the jurisprudence of the European Court of Human Rights (ECtHR), I will argue that the dominant theoretical position treating all human rights as equal must be abandoned. Rather, I will show that jurisprudence contains an inherited hierarchy among certain rights in which privacy occupies an elevated position. The reasons are threefold: first, privacy is a critical element to personal fulfilment and self-development which has intrinsic value for human beings and a democratic society as it is the basis for pluralism. Second, free and undisturbed development of personality is a necessary precondition for the free exercise of certain human rights, e.g. right to education; freedom of expression; freedom of thought, conscience and religion; free elections; and freedom of assembly and association. Third, some level of privacy has to be ensured in order to freely exercise these human rights. I will conclude that these issues become even more pressing due to the universal implementation of digital technologies. Informational self-determination is one effective tool to guarantee privacy and to guard against discrimination, public humiliation or self-imposed stigma and push for effective remedies in case of privacy infringements and urge to consider stricter laws that prohibit requests or receipt of certain information (e.g. about race, sexual orientation, health status, or gender) that could form the basis of discrimination.