Mejoras en el asentamiento entre 1940 y 1951: tercera fase

Constitution

The right of privacy is a right which is stated in the Dutch constitution, article 10. This article states the following:

‘’1. Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to Act of Parliament.

2. Rules to protect privacy shall be laid down by Act of Parliament in connection with the recording and dissemination of personal data.

3. Rules concerning the rights of persons to be informed of data recorded concerning them and of the use that is made thereof, and to have such data corrected shall be laid down by Act of Parliament.’’ (Grondwet, 1815; article 10).

Basically this means that everyone in the Netherlands has the right of privacy, but exceptions can be made. The government is not allowed to use personal data without having a good reason. On the other hand, everybody is allowed to get access to information which gives insight into what kind of personal data is recorded and everyone should be able to change this if this information is incorrect (Nederlandse grondwet, 2015).

Rights which are related to article 10 of the constitution are article 11, 12 and 13. These rights state that it is not allowed to enter someone’s house or to open letters without authorization. These four articles protect the citizens from unlawful intervention by the government (Nederlandse grondwet, 2015).

Dutch laws / Personal Data Protection Act

An act which is based on article 10 from the constitution is the Personal Data Protection Act, the Wbp. This act is seen as the most important law regarding the right of privacy in the Netherlands (CBP, 2015). The aim of the Wbp is to protect the privacy of the Dutch citizens by the processing of personal data. Organizations which collect personal information must inform their customers about what is done with

this information. However, if this information is used for a legal obligation then the person does not need to be informed. Moreover, civilians can make a request to an organization to get insight in what kind of personal data this organization possesses about him/her. If this information is incorrect, the organization needs to change this. Another right which Dutch citizens have, is the right of motivation. If an organization refuses to give a certain product, like an insurance, the civilian has the right to know on what grounds this decision is made. These rights should keep organizations away from using personal data for the wrong purposes. Finally, governmental organizations also need to respect the right of privacy, but the information that the government collects can also be used by other organizations. If someone has an objection about the fact that others are allowed to use this information there is a possibility to ask the municipality about the possibilities to keep certain information secret and inaccessible for others (Rijksoverheid, 2015a).

Governmental organizations should also respect the right of privacy. There is an exception; the Wbp and especially the part about the data processing does not apply to the intelligence services. If the intelligence services would like to use personal data for, for example, investigations, they are permitted to do so under the conditions of the Wiv 2002 (Wet bescherming persoonsgegevens, 2000). European law

The Personal Data Protection Act has been established according to the European Privacy guideline of 1995. This guideline was developed when the Internet was still unknown to most people. Nowadays, millions of people use the Internet and therefore the guideline needs to be adapted. The European Commission agreed to adapt the guideline to modern challenges. These proposals are not valid yet, since they have not been accepted by the Council and the European Parliament (European Commission, 2015). The proposals concentrate on the reinforcement of the responsibilities of organizations which collect personal data by forcing these organizations to report data leaking and giving national privacy organization more capabilities and autonomy (CBP, 2015).

The reason why the European Union develops these guidelines is to create a minimum level of privacy since privacy laws between countries can differ enormously. Even though the right of privacy is important for the EU, their laws sometimes come into conflict with these national rights. In 2005 the European commission forwarded a proposal that compelled all member states to collect all metadata from telecommunication. This would give the possibility to get information about where a person was, which phone numbers were called and how long the phone calls had lasted. The Netherlands developed a law for this, but not every county did this and in order to force these countries to do so the Commission went to the European Court. The European Court decided that this collection of data was in violation with the right of privacy and decided that these guidelines regarding data collection should not be used anymore. But the Dutch government kept their law. As a reaction to this, some (privacy) organizations started a case, which they won. The Dutch Court then decided that this law violated the right of privacy and declared the law invalid (Europa Nu, 2015; Privacy Barometer,2015a) The decision of the European Court was made based on the fundamental rights which apply to all states of the EU. All fundamental rights which apply in the EU are brought together in the so-called Charter of Fundamental Rights. This Charter was established to clarify which rights and in what forms these rights apply in the EU (European Commission, 2015). The Charter exists of 54 articles, of which some also can be found in the European Convention on the Protection of Human Rights and Fundamental freedoms (ECHR). Regarding the right of privacy, article 7 states:

‘’Respect for private and family life; Everyone has the right to respect for his or her private and family life, home and communications.’’ (Charter of Fundamental Rights of the European Union, 2000; article 7).

This article does, however, not explain more explicitly what privacy is. Article 8 has a relation with the right of privacy. This article states something about the protection of personal data. Basically article 8 has been used for the Wbp, while it states that everyone has the right of protection of their personal data, that the processing of this data should be done fairly and that everyone should be able to know what kind of information is collected about oneself (Charter of fundamental rights of the European Union, 2000; Wet bescherming persoonsgegevens, 2000).

The ECHR, has already been mentioned, in specific article 8, because this article explains the right of a private and family life. This article states the following:

‘’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.’’ (ECHR, 1950; article 8).

The ECHR is an important treaty, while it mentions a lot of fundamental rights. For Amnesty International the ECHR is, together with the Charter of Fundamental Rights, the most important treaty when speaking about the right on privacy, because it is legally enforceable (personal communication, November 17, 2015). In order to keep this treaty up to date, the meaning of some words will change over time. For example, the word correspondence in the first paragraph of the ECHR. First this word only referred to letters, however, communication methods changed and with that also the meaning of this word. Nowadays, phone calls also fall under the term correspondence and if new communication systems will develop probably they will, also, fall under this term (Asscher, 2002).

In chapter 2, different definitions of academics on privacy were given. One of these definitions consisted of six dimensions:

(1) the right to be let alone; (2) limited access to the self; (3) secrecy; (4) control of personal information; (5) personhood; and (6) intimacy.’’ (Van Lieshout et al., 2013; p. 120)

None of the laws mentioned before gave a clear definition of privacy as is done by, for example, Van Lieshout et al. (2013). Elements which can be found in the law are terms like ‘’respect for private life’’ and ‘’being able to get access to information which is stored about an individual’’ have been mentioned in the laws. These elements are more part of the Data Protection Act. There is a difference between privacy and data protection according to respondent Van Den Berg (Academic). One is more about what will be done with the collected data and is not that difficult to arrange by law. On the other hand there are experience-components which are more about the thoughts of what will happen with the data. Mrs. Van Den Berg sees privacy more as the concept of contextual integrity developed by Nissenbaum (2004), as explained earlier in paragraph 2.2.2.

While the laws do not clearly explain the right on privacy, the different perspectives on this term will remain. From a more juridical perspective the Charter and the ECHR will be the standards for explaining privacy, on the other hand definitions given by academics are used. Privacy First has, like Amnesty International, also a more legal perspective to the right on privacy. During the interview with Mr. Böhre of Privacy First, it became clear that Privacy First sees privacy as the right to be let alone and the right to openly be yourself. The reason why Privacy First has more of a legal perspective to privacy is because they also participate in cases against organizations which violate fundamental rights, but they are aware of the fact that 100% privacy will never exist.