Privacy Protection in ECHR Member States: Germany and the United Kingdom

This chapter delves into the practical implementation of privacy protection within the member states of the European Convention on Human Rights (ECHR), with a specific focus on Germany and the United Kingdom. This chapter examines the legal frameworks, landmark cases, and societal implications that have shaped the privacy landscape in these nations. Germany The chapter begins with an examination of Germany’s approach to privacy protection, known for its robust safeguards. It provides an overview of key cases that have significantly influenced privacy protection. The legal foundation of privacy in Germany, the German Basic Law, is explored as the constitutional basis for safeguarding fundamental rights, including privacy. This legal framework encompasses the “general personality right,” a comprehensive concept that covers various aspects of privacy. The chapter analyzes pivotal cases such as Dr. Schacht, Krankenpapier, and Ginsengwurzel, which have played a significant role in shaping the general personality right. These cases highlight the constitutionalization of civil law privacy and personality rights, encompassing the right to privacy, one’s identity, informational self-determination, and the right to be forgotten. Additionally, the concept of “Gesetzesvorbehalt” is examined, emphasizing the need to balance the right to privacy with freedom of expression and the media. Furthermore, the chapter explores the influence of the ECHR and the European Court of Human Rights (ECtHR) on German privacy protection. It acknowledges the impact of ECtHR decisions on German law and jurisprudence, particularly regarding the balancing act between privacy and freedom of speech. United Kingdom Shifting the focus to the United Kingdom, the chapter provides insights into the unique landscape of the British tabloid press and its implications for privacy. It offers an overview of key privacy cases and the legal system, emphasizing the role of the Human Rights Act (HRA) in incorporating the ECHR into domestic law. The chapter critically analyzes cases such as A v B plc and Campbell v MGN, which illustrate how UK courts have grappled with privacy issues and freedom of expression. It explores the extension of breach of confidence as an alternative to a comprehensive privacy tort, highlighting the challenges and ambiguities in its application. In both Germany and the United Kingdom, the chapter observes a growing awareness of the importance of protecting personal privacy. However, each country has adopted a distinct approach, with Germany emphasizing the overarching concept of the general personality right and the UK relying on the development of privacy protections within the breach of confidence framework. In conclusion, this chapter underscores the evolving nature of privacy protection within ECHR member states. It illuminates the complexities and nuances inherent in striking a balance between privacy rights and freedom of expression, providing valuable insights into the practical implementation of privacy laws in these two influential European nations.