The right to privacy was introduced in Europe in 1950, with the adoption of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Article 8 of the ECHR obligates all Member States to provide a “right to respect for private and family life”. Similarly, Articles 7 and 8 of the Charter of Fundamental Rights of the European Union provide for the respect for private and family life and protection of personal data.
The first recognition of a right to data protection at a regional level in Europe was under Convention 108 of 1981 on the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108). This was a first of its kind, international instrument in the field of data protection adopted by the Council of Europe, and pre-dates the formation of the European Union (EU).
Over the past 40 years, the EU has also adopted many instruments governing data protection such as, inter alia, the Data Protection Directive, the e-Privacy Directive and the Data Retention Directive.
A comprehensive data protection legislation was adopted by the EU in 1995 in the form of the Data Protection Directive. This directive codified data protection principles such as purpose limitation, data minimisation, and notice and consent. The Data Protection Directive proved pivotal in the evolution of privacy jurisprudence in the EU and was subsequently replaced by the General Data Protection Regulation (GDPR) in 2018. The GDPR is now the primary data protection law in the EU and is often considered as the benchmark for data privacy laws around the world.
While the GDPR is binding on all Member States of the EU, it supplements each country’s own legal system. The right to privacy within a country would therefore be a function of both, the regional EU guidance, as well as its domestic legal system.
Europe has led the world in the evolution of privacy jurisprudence for decades. This evolution has been supported by both regional legal instruments as well as case law. The two premier courts of the European region, the Court of Justice of the European Union (ECJ) and the European Court of Human Rights (ECtHR) have been instrumental in shaping its privacy jurisprudence. This database captures key privacy case law from both the ECJ and the ECtHR.
The main regional administrative and legally binding structure in Europe is the European Union (EU). It is a union of 27 Member States (countries) who have come together to establish legislative, administrative, and judicial institutions, which bind them together for economic, social, political gains. The legal instruments of the EU consist mainly of treaties (primary legislation), secondary legislation (regulations, directives, and decisions), and case law.
EU treaties are binding agreements between its Member States and set out EU objectives, rules for its institutions, how decisions are made and the relationship between the EU and its Member States. The aims and objectives of the EU treaties are achieved by secondary legislation in the form of regulations, directives, and decisions. Regulations are binding upon all Member States and must be applied in their entirety across the EU. A directive, whilst binding in respect of the goals to be achieved, leaves Member States with a certain degree of flexibility in its adoption. Decisions are legal instruments that are binding on those to whom they are addressed (e.g. an EU country or an individual company). In addition to these, there are certain non-binding legal instruments such as recommendations and opinions.
The top court of the EU is the ECJ. It interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions. It can also, in certain circumstances, be used by individuals, companies or organisations to take action against an EU institution, if they feel it has somehow infringed their rights.
In addition to the EU and its primary and secondary legislation, 47 European countries are bound by the ECHR. It is a binding treaty on its members and provides for the protection of certain civil and political rights in line with the Universal Declaration of Human Rights. The court for adjudication and enforcement of the rights recognised by the ECHR is the ECtHR.