The year 2023 is a year of key milestones for privacy as a fundamental human right. On 10 December 2023, we are celebrating 75 years of the Universal Declaration of Human Rights (UDHR) and on 3 September 2023, we celebrated the 70th anniversary of the European Convention on Human Rights (ECoHR) entering into force. The ECoHR is the first convention of the Council of Europe (CoE), which was adopted in 1950 and became effective in 1953.
Privacy as a fundamental right
In 1947, the newly established United Nations (UN), largely in response to the atrocities of World War II, set up a dedicated Human Rights Commission chaired by Eleanor Roosevelt (1884-1962). After 18 months’ deliberation, the Commission drafted the UDHR. On 10 December 1948, the UN adopted the UDHR, thus acknowledging for the first time the universality of the human rights of each and every human being, anywhere, anytime. The UDHR is the first global codification of rights to which all human beings are inherently entitled. Since then, the UDHR has become a blueprint for international human rights.
Privacy is a fundamental human right, and has been since the 1948 adoption of UDHR, particularly Article 12, which states that
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
The UDHR had moral, but no legal obligation; it was not until 1976 when the International Covenant on Civil and Political Rights (ICCPR) came into force that a legal status was given to most of the UDHR.
Article 17 of the ICCPR states the following:
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
Via the UK’s ratification, the Bermuda government agreed to uphold and respect several international human rights treaties. These include the Universal Declaration of Human Rights, along with the International Covenant of Economic, Social and Cultural Rights, and the International Covenant for Civil and Political Rights. Together, they make up the International Bill of Human Rights.
The right to privacy and family life has been embedded as a fundamental human right in a number of international treaties and covenants, including
the 1953 Council of Europe (CoE) European Convention on Human Rights (Article 8), which states:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
the aforementioned 1966 International Covenant on Civil and Political Rights;
the 2000 European Charter of Fundamental Rights. Article 7 of the CFREU states that
“Everyone has the right to respect for his or her private and family life, home and communications. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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, the protection of health or morals, or for the protection of the rights and freedoms of others.”
the CoE Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data – Convention 108 – adopted on 28 January 1981.
Convention 108 is a milestone treaty that enshrined privacy as a fundamental human right. Since 1981, it has been ratified five times, resulting in Convention 108+. The European signatories have been joined by African and South American countries that also ratified the treaty. While more and more countries have domestic laws that protect privacy like Bermuda’ Personal Information Protection Act (PIPA) 2016, Convention 108+ remains the only treaty that legally binds countries under the terms of international law.
The right to privacy: what is it?
Imagine that you have a personal diary where you write down your thoughts, feelings, experiences and secrets. You consider this diary to be very private, and you would want nobody else to read it without your permission or knowledge. The right to privacy resembles a shield that helps protect your personal information from being disclosed or shared without your consent or a good reason.
Article 8, Right to respect for private and family life, states as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
“2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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.”
As Commissioner White remarked in his 2020 blog post, “[w]hile the language of Article 8 seems simple, it delves into many aspects of society, including privacy and data protection; physical, psychological, or moral integrity; identity and autonomy; families; home affairs; and correspondence.”
The European Convention on Human Rights recognises and protects your right to keep certain aspects of your life private. Article 8 essentially establishes the right to privacy as a fundamental human right. This right encompasses various aspects of an individual’s private life, including their personal communications, family life, and home. Just as you may keep your personal diary locked in a box because you don’t want someone to read it, the significance of Article 8 is that it ensures that governments, institutions, and public authorities respect your privacy and prevents them from intruding into your private life unless there is a valid justification. These limitations must meet specific criteria, including being lawful, necessary in a democratic society, and serving legitimate purposes such as national security, public safety, or the protection of rights and freedoms of others.
Privacy and sensitive personal information in Bermuda
Privacy is the right of an individual to be left alone and in control of information about oneself. In Bermuda, individuals’ personal information is protected under the Personal Information Protection Act (PIPA) 2016. Under PIPA, personal information about race, colour, ethnicity, nationality, gender, sexuality etc. is considered “sensitive personal information”. Sections 5, 13, 24, 44, and 47, make specific references to privacy-related risk and harm caused to individuals using their personal information.
There’s an earlier privacy-related body of fundamental governing principles in Bermuda though: the 1968 Constitution explicitly protects the privacy of Bermudians, stating the following in Chapter 1, Section 1, Fundamental rights and freedoms of the individual:
“1. Whereas every person in Bermuda is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely:
“(a) life, liberty, security of the person and the protection of the law;
“(b) freedom of conscience, of expression and of assembly and association; and
“(c) protection for the privacy of his home and other property and from deprivation of property without compensation...”
The intrinsic connection between the European Convention on Human Rights and privacy in Bermuda was noted 29 years ago, in 1994, in the preamble to the Criminal Code Amendment Act. The so-called Stubbs Bill specifically refers to the fact that “the European Convention of Human Rights and Fundamental Freedoms has been extended by Her Majesty to Bermuda” and that “Article 8 of the European Convention on Human Rights and Fundamental Freedoms protects the right of privacy”.
As Commissioner White observed in his November 2020 blog post on the 70th anniversary of signing the ECoHR in Rome, “[n]othing we do is in a vacuum. Laws and lawmakers have often been influenced by factors from around the world, even if only in a persuasive way by virtue of the force of logic. When we find ourselves in need of assistance in understanding these complex issues, Bermudians can turn to a lifetime of laws, decisions, and interpretations relating to the European Convention on Human Rights.”
The European Convention on Human Rights and Privacy
The ECoHR is a European treaty, a set of rules or guidelines that 46 European countries agreed to follow. These rules are designed to protect people’s human rights and fundamental freedoms; they crystallise and give binding effect to the rights set out in the Universal Declaration of Human Rights (UDHR). Since 1953, the ECoHR has changed people’s lives in many ways. The CoE has put together a list of 200 examples of how the Convention has improved the lives of individuals in (and beyond) Europe.
The ECoHR lays down absolute rights which can never be breached by the States, such as the right to life or the prohibition of torture, whilst protecting certain rights and freedoms which can only be restricted by law when necessary in a democratic society, for example the right to respect for private and family life. The right to privacy or private life is enshrined in the European Convention of Human Rights (Article 8) and the United Nations’ UDHR (Article 12).
ECoHR and Bermuda
ECoHR was recognised in British Law in 1953. Shortly thereafter, the UK further extended its protections to include other British overseas territories (BOTs), such as Bermuda. Since that time, Bermudians have benefited from the legal protections of the ECoHR.
Bermuda, like other BOTs, is subject to the jurisdiction of the United Kingdom with respect to matters related to human rights and international law. As a result, individuals in Bermuda may have recourse to the European Convention on Human Rights through the European Court of Human Rights (ECHR).
The ECHR is a supranational court based in Strasbourg, France. It interprets the ECoHR and oversees its implementation in the 46 CoE member states, including the UK and its BOTs. Once all possibilities of domestic legal remedies have been exhausted in the member state concerned, individuals can bring complaints of human rights violations to the ECHR. Over the years, the Court has developed a substantial body of case law that details how privacy rights are expressed in daily life and further defines the scope and limitations of the right to privacy under Article 8. These cases often involve complex legal and factual considerations and serve as precedents for future decisions.
The fact that Bermuda is a British Overseas Territory means that Bermudians can bring complaints of human rights violations to the ECHR. As recently as July 2023, the ECHR communicated the case of Ferguson and Others v United Kingdom concerning same-sex marriage in Bermuda. Since the March 2022 Privy Council decision banning same-sex marriage in Bermuda, several applicants have now sought judicial remedy through the ECHR. The Human Rights Commission has recently announced that it would be providing a third-party intervention in the matter.
To our knowledge, this is the first and the only case in Bermuda that has gone to the ECHR but do let our office know if you’re aware of other cases before the ECHR.
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The Human Rights Commission is a public resource and can be contacted at humanrights@gov.bm and 295-5859. You can also visit their office located on the ground floor of Milner Place, 32 Victoria Street, Hamilton or visit their website at humanrights.bm to learn more.