The law is one of the main instruments of social impact, which is particularly evident in the midst of a global health crisis, when the situation and applicable regulations are changing every day. New statutes and regulations are key to maintaining the delicate balance between order and chaos, public and private interests, and the common good and individual rights.
While there is no doubt that protection of personal data and the right to privacy must not stand in the way of saving life, it is just as important to ensure that even in a pandemic the right to exercise these fundamental rights is enjoyed by both the healthy and the sick.
In an epidemic, it is no surprise that limitations on movement are imposed and data are used concerning the location of infected persons, including anonymous and aggregated data. But the scale of the COVID-19 pandemic creates an exceptional situation. Never before have governments had at their disposal such a large quantity of data and such far-reaching tools, many of them now with expanded authorisation, including in the field of health oversight.
Data may come from location systems of mobile phones, call logs, video surveillance recordings, and information from border controls. Some governments require their citizens to regularly transmit geolocation selfies or actively report on apps collecting data on their health status. In other instances, data are tracked in the background, e.g. by erecting virtual electronic fences, setting boundaries around persons subjected to quarantine and notifying the authorities when their telephones leap the virtual fence. When that occurs, the police have the right and duty to intervene. Some governments publicly release personal data of persons infected with COVID-19, including their age, sex and address. Others, while not disclosing names, transmit sufficient information to easily identify the individuals.
European Convention on Human Rights
From the perspective of protection of privacy rights in Europe, apart from regulations at the national level and guarantees within the European Union, a fundamental role is played by Art. 8 of the European Convention on Human Rights, which guarantees each individual the right to respect for private life, except for cases provided by law and “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Despite its fairly terse wording, Art. 8 ECHR has become the basis for recognition of a range of rights not expressly stated in the law, but broadly debated in the legal literature and in the case law of the European Court of Human Rights, such as reproductive rights (Tysiąc v Poland), the right to knowledge of one’s biological origin (Odièvre v France), sexual rights (Orlandi v Italy), protection of one’s image (Von Hannover v Germany (no. 2)), protection of mental health (Bensaid v UK), protection of sensitive data (Catt v UK), and protection of the environment as an aspect of private life (Fadeyeva v Russia).
The convention allows states a certain margin of discretion in assessing whether a given interference in the right to privacy is necessary in a democratic society. In addition, Art. 15 of the convention includes a mechanism for a state to derogate from its obligations under the convention in a state of public emergency, “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” (Through 27 April 2020, notice of exercise of Art. 15 of the convention was given by Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia, Romania, San Marino, and Serbia.)
Regardless of whether measures interfering with these rights are based on the ordinary scope of permissible interference or on a special derogation, they must meet the requirements of necessity and proportionality.
What is necessary and proportionate in the face of the pandemic?
Limitations on privacy that are not essential to save life and only allow continuation of commercial activity will probably not be found to be necessary. The availability of alternative means of protecting privacy should exclude the possibility of implementing instruments, even temporary ones, not meeting the proportionality test.
In the coming weeks, political compromises between protection of privacy and the need to protect the health of the society will probably be unavoidable. After passing the peak of infections and introducing rules for the “new normal,” will the government begin to introduce new systems warning citizens entering into increasingly common interactions with potentially infected persons? Will these measures be rejected as too intrusive on privacy, or defended as protecting the equally valid fundamental right of healthy persons to move freely?
So long as Poland remains a member of the Council of Europe and a signatory of the European Convention on Human Rights, any state interference in our right to privacy based on the convention must meet the conditions and aims set forth in the convention.
Under the case law of the European Court of Human Rights, accordance with the law does not mean just having a basis in applicable regulations. The regulations themselves must be clear enough to enable the individual to comply with designated rules, and must provide adequate safeguards against arbitrary exercise of discretion, through judicial or other means of independent review of measures interfering in the individual’s rights (e.g. Rotaru v Romania, Polyakova v Russia and Solska v Poland).
To determine whether interference with the right to privacy is necessary, the court weighs the interests of the state against the individual rights of the applicant. In an early case based on Art. 8 of the convention, the court explained that “necessary” in this context does not mean merely “useful,” “reasonable,” or “desirable,” but “implies the existence of a ‘pressing social need’ for the interference in question” (Dudgeon v UK).
In any case, with respect to the broad margin of discretion left to the national authorities, a preliminary determination should be made on whether there is a pressing social need for the interference. This assessment is subject to oversight by the ECtHR, and interference with a right under the convention cannot be regarded as necessary in a democratic society if it is not proportionate to its lawful aim.
Complying with the principle of proportionality does not mean only that the proposed measure will be effective, but also that the aim cannot be achieved through existing or less invasive instruments. These instruments should be carefully examined before new measures interfering with rights are imposed. According to the case law from the ECtHR, the more important the right under the convention, the more persuasive must be the grounds for interfering with the right.
This is not the first time the authorities have considered introducing measures for widespread, tech-based supervision to protect society, and it will not be the last. In the future, as artificial intelligence technologies grow, the temptation to apply close monitoring of individuals will become even stronger. That is why setting clear boundaries, as defined in the cooperation between member states of the European Union or within the Council of Europe, is essential to ensure the individual appropriate guarantees in extraordinary situations and also when, hopefully, life returns to normal.
Anna Olejniczak-Michalska, attorney-at-law, Private Client practice, Reprivatisation practice, Wardyński & Partners