The present article mainly focuses on providing an in-depth examination of the right to data privacy and respect for private life through criminal law tools underlined in domestic and international instruments. Incidents of improper usage of private data requires an increasing need to protect data privacy in accordance with global standards and principles.
For our work and all legal services on the matter of criminal law, please click our "Practice Areas", titled "Dispute Resolution and Litigation".
What is meant by data privacy or the right to privacy?
Data privacy implies the right to make any decision on when, how and to what extent personal and|private information can be communicated to outsiders. Generally speaking, the collection, processing, the supervision, and protection of the confidentiality of personal data are guaranteed by domestic legislation across jurisdictions. The right to data privacy is recognized to cover a broad range of rights including the right to access to their data, a right to portability, a right to be forgotten, and a right to share or not.
What are data privacy examples?
We can give numerous examples of data protection breaches. For instance, if a man takes some photographs of her girlfriend without her own will, stores them, or communicates those photos to people, each action will be a clear violation of the right to data privacy.
Typically, there are four classifications for data: public, internal-only, confidential, and restricted. Let's look at examples for each of those.
What is the core legal instruments in data privacy and respect for private life?
There is no doubt that International organizations' workings are of utmost importance in setting forth data promotion standards and principles. International instruments mark a historic development for the promotion of data privacy and respect for private life.
Firstly, the Convention on Cybercrime (ETS No. 185), which entered into force on 1 July 2004, was introduced by the Council of Europe member states, Canada, Japan, South Africa and the United States of America. Various types of offenses in the sphere of cybercrime fall within the ambit of the Convention in question.
Secondly, the United Nations Human Rights Committee, in its General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights, adopted at its 102nd session (11‑29 July 2011), states as follows:
"43. Any restrictions on the operation of websites, blogs or any other Internet-based, electronic or other such information-dissemination system, including systems to support such communication, such as Internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3 underlining that freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.
Last but not least, within the ambit of Article 8 of the European Convention on Human Rights, the established case-law of the European Court of Human Rights holds the view that the concept of private life includes a person's physical and psychological integrity which the States have a duty to protect, even if the danger comes from private individuals (Volodina v. Russia (No. 2) App: 40419/19, para. 47).
What kind of components does jurisprudence of the European Court of Human Rights have for data privacy and respect for private life?
It is critical to note that the European Court reiterates that online violence, or cyberviolence, is closely linked with offline, or "real-life", violence and falls to be considered as another facet of the complex phenomenon of domestic violence (see Buturugă, App no. 56867/15, § 73, 11 February 2020, paras. 74 ve 78)
The European Court reiterates that the concept of private life includes a person's physical and psychological integrity which the States have a duty to protect, even if the danger comes from private individuals (see inter alia Eremia v. the Republic of Moldova, no. 3564/11, §§ 72-73, 28 May 2013).
Children and other vulnerable individuals, in particular, are entitled to effective protection. The particular vulnerability of victims of domestic violence and the need for active State involvement in their protection has been emphasized both in international instruments and in the Court's well-established case-law (see among others, Hajduová v. Slovakia, no. 2660/03, §§ 41, 30 November 2010; and Volodina, cited above, § 72).
What is more, the European Court of Human Rights considers "the crime of cyber harassment" as a dimension of violence against women, by recognizing that ...the acts of cyberviolence, cyberharassment and malicious impersonation have been categorized as forms of violence against women and children capable of undermining their physical and psychological integrity in view of their vulnerability (see paragraphs 20, 23 and 24 above, and K.U. v. Finland, no. 2872/02, § 41, ECHR 2008). The Court also emphasizes that cyberharassment is an aspect of violence against women and girls and can take a variety of forms, such as cyber‑violations of private life ... and the taking, sharing and handling of information and images, including intimate ones" (see Buturugă, cited above, § 74).
Article 3 and Article 8 are together for data privacy and respect for private life
According to the established case of the Strasbourg Court, the positive obligation applies to all forms of domestic violence, whether occurring offline or online. The Court has found that this positive obligation – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – includes in particular: (a) the obligation to establish and apply in practice an adequate legal framework affording protection against violence by private individuals; (b) the obligation to take the reasonable measures in order to avert a real and immediate risk of recurrent violence of which the authorities knew or ought to have known, and (c) the obligation to conduct an effective investigation into the acts of violence (Bevacqua and S., § 65; Eremia, § 75; Volodina, §§ 76‑77 and 86)
What about domestic regulations on the right to data privacy and private life?
The right to respect for private life is also guaranteed in accordance with Article 20 of the Constitution. Indeed, according to the article in question, everyone has the right to request respect for their private and family life, and the confidentiality of private and family life cannot be violated without any exception.
Pursuant to Article 134 of the Turkish Penal Code, any person who violates the privacy of another person's personal life shall be sentenced to a penalty of imprisonment for a term of one month to three years. Where the violation of privacy occurs as a result of recording images or sound, the penalty to be imposed shall be increased by one fold.
Overall, the available article discusses the main components of data privacy and the existing international instruments on the global scale. Besides, the paper also has made a reference to the national regulatory framework in Turkey. In the light of the foregoing considerations, it is necessary to stress that there have been landmark international instruments and Turkish legal system dedicated to better promotion of the right to data privacy. A full-fledged legal assistance is also obligatory to benefit from a 'core' or 'essence' of the right to data protection.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.