One of the rights in the collision that must be balanced against the employer’s legitimate interests is the (employees’) right to privacy. However, when it comes to defining privacy, scholars usually face difficulties, as there exists no universal standpoint regarding its meaning.74 Due to its complexity, creating one single definition leads to a contended result.75 The aim of Section 1 is to provide a general conceptual basis regarding the scope and meaning of (the right to) privacy – which will be an essential precondition to addressing the specific challenges caused by the proliferation of SNSs and their effects on individuals’
and society’s expectations of privacy.
§1 will address the history and scope of privacy and the way it is apprehended by scholars. Then, §2 will focus on how the different legal regulations regulate the right to
67 The most relevant international organizations that adopted international norms in the field of privacy and/or data protection are the UN, OECD, CoE and EU.
68 At the constitutional level, as well as in civil law and penal law regulations.
69 Despite what its appellation might suggest, the right to data protection does not aim to protect personal data, but the individual to whom personal data relates. Majtényi 2002. pp. 57–58.
70 Both rights are acknowledged in the CFREU (Article 7 and Article 8), are explicitly present in the Hungarian constitution (Article VI) and gained constitutional recognition by the French Constitutional Council.
71 Rouvroy – Poullet 2009. p. 61.
72 Vissy 2015. pp. 200–201.
73 E.g. is publishing something on an SNS considered to be part of private life? Can the employer monitor how employees use these sites? Can the employer tell the employees how they can use these sites? These and other specific questions will be addressed under Title 2.
74 As Avner Levin and Patricia Sánchez Abril phrased it: “[p]rivacy has always been difficult to define. It seems that everyone wants it, but there is no consensus as to its meaning or value.” Levin – Sánchez Abril 2009.
p. 1007. Or see as Daniel Solove aptly formulated: “[p]rivacy seems to be about everything, and therefore it appears to be nothing.” Cited in: Hughes 2015. p. 528.
75 Clarke 2014. p. 174.
privacy, with special regard to the most important international organisations, and to the two countries in the focal point of the monograph: France and Hungary.
§1. The challenges in defining (the right to) privacy: definitions and history In spite of the numerous attempts that have been made to define privacy, it remains a complex and contested concept,76 relating to which no universal definition could be formulated.77 Although the claim for privacy is universal, its concrete form differs according to the prevailing societal characteristics, the economic and cultural environment.78 It means that privacy must be reinterpreted in the light of the current era and be examined in the current context. Naturally, this ever-changing nature leads to challenges when it comes to defining what should be protected.79
It must also be anticipated that what is considered to be private and what is legally protected as private can differ:80 focus will be put on the legal aspects of privacy. Although privacy has been in existence for a long time, as certain needs for privacy have their early origins in ancient societies, it only became a generally accepted right in the 19th-20th century.81
In the light of the challenges presented above, it is not the aim of the monograph to establish an exhaustive or universal notion of privacy. However, a discussion on privacy is inevitable when addressing the question of workplace privacy protection and social media, in order to understand what privacy means in the context of SNSs and employment. Thus, the most important definitions and approaches to effectively addressing privacy will be presented, with the aim of creating a definition for the purpose of the monograph.
(A) History of (the right to) privacy
Before addressing the exact content and scope of privacy, it is needed to define the main context in which (the right to) privacy appeared and continued to develop. Therefore,
76 As Michael D. Birnhack stated: “[p]rivacy is a contested legal concept, with several understandings and more misunderstandings, covering distant areas of human activities. Privacy is under constant attacks from many different angles. Despite the criticism, its inherent vagueness, and instability, privacy is a fundamental human right and a hallmark of democracy.” Birnhack 2008. p. 508.
77 As Serge Gutwirth formulated it: “[t]he notion of privacy remains out of the grasp of every academic chasing it.” Gutwirth 2002. p. 31.
Robert C. Post also expressed his doubts regarding whether a universal definition of privacy could be created by stating that “[p]rivacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all.” Source: Post 2001. p. 2087.
78 Majtényi 2006. p. 211.; Simon 2005. pp. 33–34.; Szabó 2005. p. 45.
79 With regard to these ever-changing circumstances, it is not only impossible but also without interest to establish a definition of privacy. Fatou Ba Sene citing François Rigaux in: Ba Sene 2015. p. 93.
80 For example, someone might find all kinds of physical connection – accidental physical contact in a bus during the rush hour or a friendly tap on the shoulder by a distant acquaintance – an intrusion into his/her private sphere, although in the legal sense it is not considered privacy infringement.
81 Notably see the famous article entitled “The Right to Privacy” written by Samuel D. Warren and Louis D.
Brandeis (Warren – Brandeis 1890) or the adoption of the different international human rights documents throughout the 20th century – to be presented later.
the main steps of its history will be addressed in the next paragraphs, followed by the presentation of how privacy gained legal recognition in French and Hungarian legal order, providing the framework of protection.
(a) Universal development
Privacy can be traced back to a long history: in a broad sense, early origins of privacy can be observed even in ancient societies.82 The idea of privacy traditionally comes from the difference between “private” and “public”,83 which distinction comes from the natural need – as old as mankind – of the individual to make a distinction between himself/
herself and the outer world.84 The limits between private and public differ according to the given era and society,85 which will cause the on-going change throughout history of what people consider private.86 Thus, contemporary conceptions of privacy and its protection will considerably differ from its early forms.
It was the 19th century which brought a huge leap in the history of privacy as the new changes in the economy and in the society led to the transformation of the way people lived, and these new changes had consequences for privacy too, as physical and mental privacy were separated and started to evolve in two different ways. Due to urbanization, the population of cities started to grow, and it led to the physical loss of privacy as people in cities had to live in crowded places. On the other hand, citizens could experience a new
“type” of privacy, as they ceased to live under the always watching eyes of their village neighbors and the constant moral control set up by them.87
It was against this background that the need for the right to privacy appeared.88 Its first appearance dates back to 1890, when Samuel Warren and Louis Brandeis first stated the need for the legal recognition of the right to privacy in their article titled “The Right to Privacy”
(published in the Harvard Law Review).89 The reason behind was the dangers underlying the appearance and growth of (tabloid) newspapers, combined with the invention of the portable cameras, which were a fertile area for gossip and photojournalism. Their writing became a famous article among legal scholars; an “unquestioned ‘classic’”,90 the “most influential law review article of all”.91 In the above-mentioned article Warren and Brandeis defined the right to privacy as “the right to be let alone”.92 The article also influenced
82 From a legal point of view, the Code of Hammurabi contained a paragraph against the intrusion into someone’s home, and the Roman law also regulated the same question. (Solove 2011. p. 4.)
83 Szabó 2005. p. 45.
84 Konvitz 1966. p. 274.
85 Szabó 2005. p. 45.
86 Daniel Solove made an illustrative example to present the on-going change regarding what people consider private: even the aspects of life that nowadays are commonly considered as private (the family, the body and the home, etc.) had been through considerable changes as initially they were far from being private. For example, marriage was initially considered to be a contract, while nowadays it is one of the most intimate decisions made by the individual. See more: Solove 2002. pp. 1132–1140.
87 Simon 2005. p. 36.
88 Early forms of protection existed as well, relating, for example, to the immunity of the home (“an Englishman’s home is his castle”) or to the protection of correspondence.
89 Warren – Brandeis 1890
90 Shapiro 1985. p. 1545.
91 Kalven 1966. p. 327.
92 Warren – Brandeis 1890. p. 193.
jurisprudence as numerous endeavors to define privacy originated from Warren’s and Brandeis’ work.93
Even before the drafting of the relevant international document(s), certain early forms of privacy protection (e.g. sanctity of the home and secrecy of correspondence) were to be found in the national legal systems, especially in France, England and Germany. However, it was only after the Second World War that the development of the right to privacy took a pace and has not slowed down ever since.94 The cruelties of the Second World War – during which the use of large databases facilitated the deportation of millions – led to the drafting of the first international human rights agreements,95 both at the universal and at the regional level. The very first international document that acknowledged the right to privacy as a fundamental human right was the Universal Declaration of Human Rights (United Nations, 1948, Article 12, hereinafter referred to as: UDHR).96, 97 At the regional level, the Council of Europe and the European Union must be mentioned. One of the most important documents regulating the right to privacy is the European Convention on Human Rights (Council of Europe, 1950, Article 8, hereinafter referred to as: ECHR), which served as a genesis for several pieces of privacy legislation throughout Europe,98 and marks the beginning of contemporary privacy protection in Europe.99 Last but not least, the Charter of Fundamental Rights of the European Union (European Union, 2000, hereinafter referred to as: CFREU) must be mentioned.
(b) Legal acknowledgement of the right to privacy: France and Hungary
In addition to the protection afforded by international norms, national systems as well guarantee the protection of the right to privacy. Both in France and in Hungary constitutional protection is accorded to the right to privacy. However, France is one of those countries which do not expressively state the protection of the right to respect for private life in its constitution.100 In France constitutional protection is afforded by the Constitutional Council, which first recognized the right to respect for private life in its 1995 “vidéosurveillance”
decision.101 Before this date, only the home received protection, but not the right to respect for private life in general.102 Although it does not refer expressly to the respect of private life as such, the “inspection of vehicles” decision from 1977103 is considered to be the first step towards recognizing the constitutional value of the right to respect for private life.104 It was finally granted constitutional value in 1995, in the “vidéosurveillance” decision, when the
93 Simon 2005. p. 32.
94 Rigaux 1991. p. 540, p. 545.
95 Buitelaar 2012. p. 174.
96 Mendel et al. 2013. p. 12.
97 Among the documents drafted by the United Nations, the International Covenant on Civil and Political Rights (United Nations, 1966, hereinafter referred to as: ICCPR) shall also be mentioned, and its Article 17 guaranteeing the respect of private life.
98 Rustad – Paulsson 2005. pp. 870–871.
99 Otto 2016. p. 69.
100 Burgorgue-Larson 2005. p. 1. (Page number referring to the online version of the article downloaded from:
https://hal.archives-ouvertes.fr/hal-01743616/document)
101 Conseil constitutionnel: décision n° 94-352 DC du 18 janvier 1995
102 Burgorgue-Larson 2005. p. 98.
103 Conseil constitutionnel: décision n° 76-75 DC du 12 janvier 1977.
104 Mazeaud 2015. p. 10.
Constitutional Council stated that “[…] the infringement of the right to respect for private life may pose a threat to the individual liberty.”105 By this, it attached the right to respect for private life to individual liberty, founded on Article 66 of the Constitution.106 Following this decision, in its “universal health insurance” decision in 1999,107 the Constitutional Council found a new legal base, detaching it from individual liberty and acknowledged that it is founded on Article 2 of the Declaration of the Rights of Man and of the Citizen,108 therefore associated with personal liberty.109, 110
Hungary’s constitution, the Fundamental Law (adopted in 2011) expressis verbis states the protection of the right to privacy, through stating in Subsection (1) of Article VI that “[e]veryone shall have the right to respect for his or her private and family life, home, communications and reputation.” The right to respect of private life as such did not appear explicitly till the adoption of the Fundamental Law,111 although it does not mean that before this period no legal protection was afforded: the previous constitution already ensured protection to certain aspects of privacy, such as private secrets and the home.112 In June 2018, Article 4 of the seventh modification of the Fundamental Law introduced certain changes relevant to the right to respect for private life, with regard to the new challenges arising due to technological development, digitalization, and the growing media attention.113 As a result of the modification, Subsection (1) of Article VI was completed with the phrase “[t]he exercise of freedom of expression and the right of assembly cannot result in the violation of private and family life or home of others.”
Subsection (2) was inserted into the same Article stating that the State legally protects the tranquility of the home.
Early forms of legal privacy protection appeared even before the right to respect of private life was explicitly declared by the Civil Codes – 1970 in France and 1977 in Hungary. In France its early history is mostly connected to the freedom of press and to the
105 Conseil constitutionnel: décision n° 94-352 DC du 18 janvier 1995, par 3.
106 Burgorgue-Larson 2005. p. 17. (Page number referring to the online version of the article downloaded from:
https://hal.archives-ouvertes.fr/hal-01743616/document)
107 Conseil constitutionnel: décision n° 99-416 DC du 23 juillet 1999
108 Conseil constitutionnel: décision n° 99-416 DC du 23 juillet 1999, par. 45. “Considering that under Article 2 of the Declaration of the Rights of Man and of the Citizen ‘the aim of all political associations is the preservation of the natural and imprescriptible rights of the Man. These rights are liberty, property, security and resistance to oppression.’ the freedom proclaimed by this article implies respect for privacy.”
109 Crouzatier-Durand 2013. p. 58.; Bioy 2016. pp. 454–456.
110 The notion of personal liberty (“liberté personnelle”) appeared in a 1988 decision of the Constitutional Council (Décision n° 88-244 DC du 20 juillet 1988.) and is considered to have utmost importance (“liberté mère”), serving as a single point of origin (“porte d’entrée unique”) for the manifestations of personal autonomy (Bioy 2016. p. 452.). On the notions of individual liberty and personal liberty, and their role in the Constitutional Council’s decisions see more in: Vadillo, Floran: Liberté individuelle vs liberté personnelle : l’article 66 de la Constitution dans la jurisprudence du Conseil constitutionnel ou la progressive reconnaissance d’un habeas corpus à la française. Petites affiches, (80), 2015. pp. 4–11.
111 Although it appeared in the practice of the Constitutional Court – which will be addressed in §2.
112 Act XX of 1949. The original text (Section 57) guaranteed protection to the individuals’ individual liberty and its inviolability, the respect of private secrets and the home. The amendment of 1972 ensured the same protection but to the citizens. The final text of the previous constitution was adopted in 1989, with Subsection (1) of Section 59 stating that “[i]n the Republic of Hungary everyone has the right to reputation, right to inviolability of the domicile, the right to the protection of private secrets and the right to the protection of personal data.” Source: Jóri 2009. pp. 2171–2172.
113 T/332. számú javaslat Magyarország Alaptörvényének hetedik módosítása, 2018. p. 5.
insults relating to private life.114 Before 1970, when the right to respect for private life was inserted115 into the Civil Code,116 protection could be afforded on the basis of the previous Article 1382 on civil responsibility.117 The previous Hungarian Civil Code (Act IV of 1959) did not ensure sui generis protection to privacy, it received protection on the ground of personality rights. It is the primary objective of personality rights to ensure protection to rights which make humans human, which are parts of human personality, without examining the societal circumstances – excluding from their scope political, cultural and social rights.118 The essence of personality rights is to ensure the free expression of the personality and to prevent anyone from hindering them, within the limits that the community imposes.119 Naturally, the exercise of these rights is not without limits, it is only in accordance with their social purpose, if it does not infringe other individuals’ rights or laws guaranteeing these rights.120, 121 It appeared in the Civil Code (Act V of 2013), which explicitly declares the protection of right to privacy.122 Another important step was the adoption of the act on the protection of private life123 in 2018.
Besides constitutional and civil law protection, criminal law also guarantees the protection against infringements of the right to privacy. When introducing civil law protection in 1970, Act No. 70-643 of 17 July 1970 on strengthening the guarantee of individual rights of citizens also inserted provisions into the French Penal Code against different invasions of privacy, at present found in Articles 226-1–226-7 of the French Penal Code.
The Hungarian Penal Code (Act C of 2012) also contains certain provisions aiming to sanction the most serious actions infringing certain components of the right to respect for private life.124
Despite the fact that during the last decades the right to privacy gained legal recognition (both at the international and at the national level) and constitutes a dynamically evolving field of law due to its dependence on societal and technological circumstances, it does not mean that a universal definition, valid in all circumstances could be created.
114 See more on the early history of French privacy law in: Whitman, James Q.: The Two Western Cultures of Privacy: Dignity versus Liberty. The Yale Law Journal, 113(6), 2004. pp. 1151–1221.
115 Inserted by the Act No. 70-643 of 17 July 1970 on strengthening the guarantee of individual rights of citizens (“Loi n° 70-643 du 17 juillet 1970 tendant à renforcer la garantie des droits individuels des citoyens”).
116 Article 9: “Everyone has the right to respect for his private life.”
Without prejudice to the right to recover indemnification for injury suffered, judges may prescribe any measures, such as sequestration, seizure and others, suited to the prevention or the ending of an infringement of the intimate character of private life; in case of emergency those measures may be provided for by summary proceedings.
117 Rigaux 1991. p. 546.
Article 1382 stated that “[t]he perpetrator of any act that causes damage to another person is obliged to make reparation.”
118 Fézer 2014. p. 250.
119 Petrik 2014. pp. 173–174.
120 BH. 1992.387.
121 See more on privacy and personality rights in: Görög 2016. pp. 61–63.
122 Subsection (1) of Section 2:42 of the Hungarian Civil Code: “[e]veryone is entitled to freely practice his or her personality rights, in particular the right to privacy and family life, home and communications with others in any way or form, and the right to protection against defamation of character, within the framework of the law and within the rights of others, and to not be impeded by others in exercising such rights.”
123 Act LIII of 2018
124 Such as: Misuse of personal data – Section 219; Illegal Entry into Private Property – Section 221; Harassment – Section 222; Invasion of Privacy – Section 223; Mail Fraud –Section 224.
The next paragraphs will explore the different notions that were created attempting to define privacy.
(B) Understanding privacy
Enumerating exhaustively all existing (philosophical) and legal notions of privacy is an impossible task125 and would also go beyond the primary scope of the monograph. Therefore,
Enumerating exhaustively all existing (philosophical) and legal notions of privacy is an impossible task125 and would also go beyond the primary scope of the monograph. Therefore,