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The Right to Communications Confidentiality in Europe: Protecting Privacy, Freedom of Expression, and Trust

  • Frederik J. Zuiderveen Borgesius and Wilfred Steenbruggen
Published/Copyright: March 16, 2019
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Theoretical Inquiries in Law
From the journal Theoretical Inquiries in Law Volume 20 Issue 1

Abstract

In the European Union, the General Data Protection Regulation (GDPR) provides comprehensive rules for the processing of personal data. In addition, the EU lawmaker intends to adopt specific rules to protect confidentiality of communications, in a separate ePrivacy Regulation. Some have argued that there is no need for such additional rules for communications confidentiality.

This Article discusses the protection of the right to confidentiality of communications in Europe. We look at the right’s origins to assess the rationale for protecting it. We also analyze how the right is currently protected under the European Convention on Human Rights and under EU law.

We show that at its core the right to communications confidentiality protects three individual and collective values: privacy, freedom of expression, and trust in communication services. The right aims to ensure that individuals and organizations can safely entrust communication to service providers. Initially, the right protected only postal letters, but it has gradually developed into a strong safeguard for the protection of confidentiality of communications, regardless of the technology used.

Hence, the right does not merely serve individual privacy interests, but also other more collective interests that are crucial for the functioning of our information society. We conclude that separate EU rules to protect communications confidentiality, next to the GDPR, are justified and necessary.

* Prof. Dr. Frederik J. Zuiderveen Borgesius is Professor of Law at the Digital Security Group (DiS), at the Radboud University Nijmegen, and researcher at the Institute for Information Law (IViR), at the University of Amsterdam. We thank our colleagues for their comments on drafts of this article: Lillian Edwards, Irene Kamara, Adam Shinar, Peter Swire, Joris van Hoboken, the editors of Theoretical Inquiries in Law, all participants at the conference ‘The Problem of Theorizing Privacy, 8-9 January 2018, and all the participants at the Privacy Law Scholars Conference Europe, 27 January 2017, Brussels, and at the Privacy Law Scholars Conference, 30-31 May 2018 Washington. We thank Sabine Rijnen and Sonja van Harten for research assistance. Cite as: Frederik J. Zuiderveen Borgesius & Wilfred Steenbruggen, The Right to Communications Confidentiality in Europe: Protecting Privacy, Freedom of Expression and Trust, 20 THEORETICAL INQUIRIES L. 291 (2019).

** Dr. Wilfred Steenbruggen is an attorney at Bird & Bird LLP (The Hague, the Netherlands). He wrote his PhD thesis on communications confidentiality. See, infra note 11.

Published Online: 2019-03-16

© 2019 by Theoretical Inquiries in Law

Articles in the same Issue

  1. Frontmatter
  2. Privacy Law’s Indeterminacy
  3. Turning Privacy Inside Out
  4. Re-reading Westin
  5. Privacy as Protection of the Incomputable Self: From Agnostic to Agonistic Machine Learning
  6. Schrödinger’s Robot: Privacy in Uncertain States
  7. Privacy and Manipulation in the Digital Age
  8. Grappling with “Data Power”: Normative Nudges from Data Protection and Privacy
  9. Contextual Integrity Up and Down the Data Food Chain
  10. A Process-based Approach to Informational Privacy and the Case of Big Medical Data
  11. The Right to Communications Confidentiality in Europe: Protecting Privacy, Freedom of Expression, and Trust
  12. Theorizing Privacy in a Liberal Democracy: Canadian Jurisprudence, Anti-Terrorism, and Social Memory After 9/11
  13. Synthesis and Satisfaction: How Philosophy Scholarship Matters
https://doi.org/10.1515/til-2019-0010

Articles in the same Issue

  1. Frontmatter
  2. Privacy Law’s Indeterminacy
  3. Turning Privacy Inside Out
  4. Re-reading Westin
  5. Privacy as Protection of the Incomputable Self: From Agnostic to Agonistic Machine Learning
  6. Schrödinger’s Robot: Privacy in Uncertain States
  7. Privacy and Manipulation in the Digital Age
  8. Grappling with “Data Power”: Normative Nudges from Data Protection and Privacy
  9. Contextual Integrity Up and Down the Data Food Chain
  10. A Process-based Approach to Informational Privacy and the Case of Big Medical Data
  11. The Right to Communications Confidentiality in Europe: Protecting Privacy, Freedom of Expression, and Trust
  12. Theorizing Privacy in a Liberal Democracy: Canadian Jurisprudence, Anti-Terrorism, and Social Memory After 9/11
  13. Synthesis and Satisfaction: How Philosophy Scholarship Matters
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