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The right of privacy in the European Convention on Human Rights

The European Convention establishes basic rules regarding fundamental rights and liberties that are applicable throughout its Contracting States. The Contracting States include every EU Member State, as well as numerous other members of the Council of Europe. Each Contracting State is obliged to ensure that everyone within its jurisdiction, without regard to nationality or place of permanent residence, enjoys the rights guaranteed by the Convention. In many Contracting States, these obligations may be enforced through national courts, on which the Convention is directly binding. To provide further assurance that the rights will not be abridged, the conduct of Contracting States is also subject to review by the European Commission on Human Rights and thereafter by the European Court of Human Rights. In addition to the obligations of individual Member States under the ECHR, European Union law also explicitly incorporates the standards set out in the Convention.

Article 8 of the ECHR guarantees the individual’s right to respect for his private and family life. The Article specifies that public authorities may only interfere with this right in narrowly defined circumstances. In particular, any interference must be in accordance with law and necessary in a democratic society, in view of such public interests as national security and the prevention of crime.

These provisions have been interpreted in a series of decisions by the European Court of Human Rights. In these cases, the Court adopts a three-part test for assessing the legality under the Convention of a governmental measure affecting individual privacy:

• first, the Court asks whether a right protected by Article 8 has been interfered with;
• next, it asks whether the interference was in accordance with law. This enquiry requires not only that there be a basis in domestic law for the interference, but also that the legal basis accord with the principle of the rule of law - that it be accessible and that its operation be foreseeable by all citizens;
• finally, the Court asks whether the interference was necessary in a democratic society.

The European Court of Human Rights has not previously ruled on a legal challenge to data retention legislation. But the Court has on numerous occasions decided cases involving analogous governmental surveillance of its citizens, frequently finding such regulation to be in violation of Article 8. Analysis of those cases shows that the data retention regime proposed by the draft Framework Decision and now reflected in certain national laws would interfere with the Article 8 right to privacy. Moreover, indiscriminate retention of personal data is not in accordance with law because it fails to distinguish between different classes of people and therefore denies citizens a foreseeable basis on which to regulate their conduct. Finally, such laws are not necessary in a democratic society because blanket retention of data is wildly disproportionate to the law enforcement aims that it seeks to advance.