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MONTESQUIEU LAW REVIEW Issue No.2
July 2015 Contents this issue Editorial:
Olivier Dutheillet de Lamothe, Honorary President of the Social Section,
Conseil d'Etat,
Honorary member of the Constitutional Council
3 The right to respect for private life and the right to respect for privacy:
the case for an
aggiornamento
Associate Professor Hubert Alcaraz, Université de Pau et des pays de
l'Adour 6 Criminal provisions for the protection of privacy: between the archaic and
the ineffective
Associate Professor Mikaël Benillouche Faculty of Law & Political Science,
University of Amiens 13 The right to respect for private life: an effective tool in the right to be
forgotten?
Associate Professor Maryline Boizard Faculty of Law & Political Science,
University of Rennes 1 20 The right to privacy: twenty years of constitutional recognition
Estelle Bomberger, Lecturer, Sciences Po and the Institut Catholique de
Paris 27 Privacy and political assassinations in France during the Trois Glorieuses:
the meanderings
of Orleanism
Associate Professor Sophie Delbrel. University of Bordeaux
34
Privacy and the disclosure of administrative documents: a well-guarded
secret?
Marie-Odile Diemer, Lecturer, University of Bordeaux
41 The war on terror and the protection of personal data
Philippe Ch.-A. Guillot, Professor of International Relations, French Air
Force Academy 47 The personal life of the employee versus the interests of the company
Associate Professor Chantal Mathieu, University of Franche-Comté
55 Privacy and ethics
Associate Professor Olivier Pluen, Université des Antilles et de la Guyane
64 Invasions of privacy via the internet: aspects of private international law Associate Professor Jean Sagot Duvauroux, University of Bordeaux
69 Transparency in public life and respect for private life
Associate Professor Messaoud Saoudi, Université Lumière Lyon II
77 The fatal metamorphoses of image rights
Professor Isabelle Tricot-Chamard, Kedge Business School, Bordeaux
84 MONTESQUIEU LAW REVIEW
Issue No.2 July 2015 Editorial Privacy: a comparative perspective
Olivier Dutheillet de Lamothe, Honorary Section President, Conseil d'Etat;
honorary member of the Constitutional Council Under the terms of Article 8 of the European Convention on Human Rights and
Fundamental Freedoms, signed in Rome on 4 November 1950 and ratified by
France pursuant to Law n° 73-1227 of 31 December 1973: "Everyone has the
right to respect for his private and family life, his home and his
correspondence". The European Convention is at the root of the recognition of the right to
respect for private life as a constitutional right in French law. Indeed, this right features neither in the 1789 Declaration of the Rights
of Man and of the Citizen, nor amongst those economic and social principles
"being especially necessary to our times" in the Preamble to the 1946
Constitution. For a long time, the Constitutional Council saw therein a
purely legislative right protected by Article 9 of the Civil Code, under
the terms of which "everyone has the right to respect for his private
life". The Constitutional Council initially recognised the right to respect for
private life as an aspect of individual freedom protected by Article 66 of
the Constitution. The decision of 13 August 1993 on the Law on Immigration
Controls enshrines a very broad conception of individual freedom within the
meaning of Article 66 of the Constitution, which includes the freedom to
come and go (recital 3), freedom to marry (recitals 3 and 107) and,
lastly, the protection of personal data (recitals 121 and 133). That decision was confirmed even more clearly by a decision of 18 January
1995, according to which "ignorance of the law on respect for private life
can be of such a nature as to restrict individual freedom" (Decision n° 94-
352 DC, 18 January 1995). The Constitutional Council then detached the right to respect for private
life from individual freedom, placed under the supervision of the judicial
authority, to make it an element of personal freedom or freedoms of the
individual, which arise from Article 2 of the 1789 Declaration of the
Rights of Man and of the Citizen. This is how the decision of 23 July 1999 on the Law establishing Universal
Health Coverage enshrines the right to respect for private life as an
element of personal freedom (Decision n° 99-416 DC, 23 July 1999, recital
45). Ten years after the 1993 decision, the decision of 13 March 2003 on the Law
on Internal Security enshrines a broad conception of personal freedom and
its link with individual freedom: "it is the task of the legislature to
reconcile, on the one hand, the prevention of breaches of public order and
the search for offenders, both necessary in order to safeguard
constitutional rights and principles; and, on the other hand, the exercise
of constitutionally guaranteed freedoms, which include the right to come
and go and the right to respect for private life, protected by Articles 2
and 4 of the 1789 Declaration of the Rights of Man and of the Citizen, as
well as individual freedom, which is placed under the supervision of the
judicial authority by Article 66 of the Constitution" (Decision n° 2003-467
DC, 13 March 2003, recital 8). The Constitutional Council gives the principle of respect for private life
a particularly extensive field of application: the decision of 2 March 2004
on the Law on Adapting Justice to the Changing Face of Crime extends the
concept of personal freedom to the inviolability of the home and to the
confidentiality of correspondence. It also gave the principle very broad scope: - by requiring, in respect of the most serious infringements of respect for
private life, intervention on the part of the judicial authority in
relation to search and seizure and also in relation to telephone tapping
and sound and film recordings of certain locations and vehicles (Decision
n° 2004-492 DC, 2 March 2004); - by deleting certain metafiles likely to infringe the freedoms of
citizens: the Council thus ruled that the processing of personal data to be
used in identifying consumer credit agreements entered into by natural
persons, the household credit repayment incidents linked to those credit
agreements, together with the information relative to excessive debt and
compulsory liquidation, in order to prevent situations of excessive debt
earlier and more effectively by furnishing financial establishments and
bodies with elements allowing them, when granting a loan, to assess the
solvency of natural persons applying for credit or standing as guarantor,
infringes the right to respect for private life in such a way that it
cannot be considered proportionate to the objective pursued "having regard
to the nature of the registered data, the scope of processing, the
frequency of usage, the large number of people likely to have access to it
and the inadequacy of guarantees relating to access to the register"
(Decision n° 2014-690 DC, 13 March 2014). The expansion of respect for private life in France is part of a general
trend across Europe: - All European countries have acceded to the European Convention on Human
Rights, which expressly recognises the right to respect for private life; - The Charter of Fundamental Rights of the European Union also recognises
the right to respect for private life in particularly clear-cut terms as,
under Article 7: "Everyone has the right to respect for his or her private
and family life, home and communications"; - Recent Constitutions such as Spain's Constitution expressly recognise
this same right; - Lastly, as an extension of France's Informatique et libertés Law n° 78-
17 of 6 January 1978 on computer technology and freedoms, the European
Union adopted the Data Protection Directive in 1995. In this respect, the European situation is very different to that of the
United States. In the American Constitution, as in the French, there is no recognition of
the right to respect for private life. This right was recognised for the first time by the Supreme Court in its
1965 decision in Griswold v Connecticut (381 US 479), in which it held that
"[w]e deal with a right of privacy older than the Bill of Rights - older
than our political parties, older than our school system. Marriage is a
coming together for better or for worse, hopefully enduring, and intimate
to the degree of being sacred". The Supreme Court went a step further in the recognition of that right in
its famous decision in Roe v Wade (419 US 113) on abortion, in which it
stated that: "[t]his right of privacy, whether it be founded in the
Fourteenth Amendment's concept of personal liberty and restrictions upon
state action, as we feel it is, or, as the District Court determined, in
the Ninth Amendment's reservation of rights to the people, is broad enough
to encompass a woman's decision whether or not to terminate her pregnancy"
and found that "[w]e, therefore, conclude that the right of personal
privacy includes