Decisions About “Access to Personal Data”
It is observed that the decisions of the European Court of Human Rights (“Court”) regarding access to personal data are generally evaluated in accordance with Article 8 of the European Convention on Human Rights (“Convention”) under the title of the Right to Respect for Private and Family Life. Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence. The Convention held that 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. Therefore, the court evaluates whether there is a violation of rights regarding this article in its decisions, within the framework of the above-mentioned principles.
In this article, concerning access to personal data, Gaskin v. The United Kingdom, Odievre v. France, and K.H. and Others v. Slovakia decisions adjudicated by ECHR will be summarized.
1. Gaskin v. The United Kingdom
On reaching the age of the majority the applicant, who had been taken into care as a child, wished to find out about his past in order to overcome his personal problems. However, he was refused access to his file on the ground that it contained confidential information. As a result, the concrete case became the subject of the Court’s examination.
It noted in particular that persons in the situation of the applicant had a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development. On the other hand, it was emphasized that it must be borne in mind that confidentiality of public records is of importance for receiving objective and reliable information and that such confidentiality can also be necessary for the protection of third persons.
Under the latter aspect, it has been noted that a system like the British one, which made access to records dependent on the consent of the contributor, could in principle be considered to be compatible with the obligations under Article 8, taking into account the State’s margin of appreciation. The Court considered, however, that under such a system the interests of the individual seeking access to records relating to his private and family life must be secured when a contributor to the records either is not available or improperly refuses consent. Such a system is only in conformity with the principle of proportionality if it provides that an independent authority finally decides whether access has to be granted in cases where a contributor fails to answer or withholds consent. No such procedure was available to the applicant in the concrete case.
Consequently, the Court considering the country’s system and the principle of proportionality together, Court held that there had been a violation of Article 8 of the Convention, finding that the procedures followed had failed to secure respect for the applicant’s private and family life as required by that Article.
You may access the Decision by this link; GASKIN v. THE UNITED KINGDOM (coe.int)
2. Odievre v. France
The applicant was abandoned by her natural mother at birth and left with the Health and Social Security Department.
She complained that she had been unable to obtain details identifying her natural family and said in particular that her inability to do so was highly damaging to her as it deprived her of the chance of reconstituting her life history.
In the instant case, it held that there had been no violation of Article 8, observing in particular that the applicant had been given access to non-identifying information about her mother and natural family that enabled her to trace some of her roots while ensuring the protection of third party interests. In addition, recent legislation enacted in 2002 enabled confidentiality to be waived and set up a special body to facilitate searches for information about biological origins. The applicant could now use that legislation to request disclosure of her mother’s identity, subject to the latter’s consent is obtained to ensure that the mother’s need for protection and the applicant’s legitimate request was fairly reconciled. The French legislation thus sought to strike a balance and to ensure sufficient proportion between the competing interests.
In its Grand Chamber judgment, the Court noted that birth, and in particular the circumstances in which a child was born, formed part of a child’s, and subsequently the adult’s, private life guaranteed by Article 8 of the Convention.
You may access the Decision by this link; Grand Chamber judgment Odièvre v. France 13.02.03 (coe.int)
3. K.H. and Others v. Slovakia
The applicants, eight women of Roma origin, could not conceive any longer after being treated at gynecological departments in two different hospitals and suspected that it was because they had been sterilized during their stay in those hospitals. They complained that they could not obtain photocopies of their medical records.
It should have been rather for the authority in possession of the data to show that there had been compelling reasons for not providing that facility. Given that the applicants had obtained judicial orders permitting them to consult their medical records in their entirety, having denied them the possibility to make photocopies of those records had not been sufficiently justified by the authorities. To avoid the risk of abuse of medical data it would have been sufficient to put in place legislative safeguards with a view to strictly limiting the circumstances under which such data could be disclosed, as well as the scope of persons entitled to have access to the files.
The Court observed that the new Health Care Act adopted in 2004 had been compatible with that requirement, however, it had come into play too late to affect the situation of the applicants in this case.
The Court held that there had been a violation of Article 8 of the Convention in that the applicants had not been allowed to photocopy their medical records. It considered in particular that persons who, like the applicants, wished to obtain photocopies of documents containing their personal data, should not have been obliged to make specific justification as to why they needed the copies.
You may access the Decision by this link; Chamber judgment K.H. and Others v. Slovakia 28.04.09 (coe.int)
As a result, it is seen in the above-mentioned decisions that the Court takes the 8th article of the Convention as a basis when evaluating the concrete facts regarding access to personal data. While making this assessment, it takes into account the system of the countries in this regard and the principle of proportionality.
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Authors: Bilge Derinbay, Hande Ülker Pehlivan
Contact: [email protected]