The Protection of Privacy between a Rights-Based and a Freedom-Based Approach: What the Swiss Example Can Teach us

Abstract

There has been a fierce debate amongst scholars about the way privacy ought to be protected in civil law countries. The key issue at stake is the question whether this protection should be implemented via so-called ‘personality rights’ (i.e. a special category of subjective rights) or whether it would be more appropriate to conceive privacy in terms of fundamental freedoms. It goes without saying that this choice entails important practical and theoretical consequences. In this article, I will first try to summary the different viewpoints, indicating each time the pros and contras. Then, I will deal with the Swiss way of privacy protection, for I believe that it shows clearly that the sketched ‘doctrinal’ opposition should not be overestimated and that it should be possible to conciliate the two approaches to privacy.