Privacy as Europe’s First Amendment


Bilyana Petkova

Maastricht University School of Law

The protection of universal principles varies across different jurisdictions: the prominence of free speech in the United States is undisputed today. In the midst of its identity crisis with looming Brexit, Europe is now experimenting with privacy-as-constitutional identity in a somewhat similar way. In a forthcoming symposium piece for the European Law Journal, I seek to advance two main arguments – the first is about the rise to centrality of a certain pivot constitutional concept – in my examples – that of freedom of speech in the United States and of data privacy in the European Union. ‘Pivot constitutional provisions’ or ‘leading rights’ become the main tenet of constitutional identity in heterogeneous societies and have the potential of exerting certain unifying influence. There was nothing legally inherent to the importance free speech has been elevated to in present day America, and nothing inherent to the strong emphasis presently given on privacy and data protection in the EU.

The US First Amendment solemnly declares that: ‘Congress shall make no law… abridging the freedom of speech, or of the press’. Despite this strong wording, from the Sedition Act of 1798, to antislavery influences, suppression of labor agitation and the First Red Scare, the First Amendment provision on freedom of speech had admittedly modest beginnings in the U.S. With Helen Knowles and Stephen Lichtam, one can agree that the modern law of free expression in the U.S. was only ‘birthed in the opinions written by Holmes and Brandeis in the 1920s and 1930s’. These were separate opinions, however, and could not get close to summoning a majority on the Supreme Court until only decades later. Outraged by the blatant disregard for free speech of the judiciary during that period, an influential intellectual contemporary, Zechariah Chafee, made it his life-long project to part with, completely ignore and ultimately repudiate disregard for freedom of expression in the U.S. Chafee essentially skimmed through legal history to conjure and convey a heroic story about respect for freedom of speech in early America based on the framers’ purported rejection of common law seditious libel. Even if some of the historical facts in Chafee’s analysis were later categorically refuted, the power of his narrative persisted, and some of Chafee’s doctrinal suggestions were taken up in the dissents of Brandeis and Holmes that persuaded the country, and in time, the Court. The ‘glorious years’ of the First Amendment with New York Times Co. v. Sullivan and Brandenburg v. Ohio would come only with the Civil Rights Revolution, however. For Bernard Schwartz, ‘[m]ore consistently than other Courts before or since, the Warren Court approached free speech questions from the perspective that freedom of expression is a preferred constitutional value’. There is a story to be told about the astonishing rise to centrality of free speech in America in exactly that period of extreme racial tensions and social divisiveness. To borrow from a sociologist, free speech filled with meaning the U.S.’s search for a ‘civil religion’, it served as a symbol of commonality and an image of internal bond in a very divided society. Importantly, whereas Sullivan came down on the side of progressive anti-segregationists, the principles that it established were interpreted to protect the expression of grievances of the opposing camp, too. Decades later, the value of free speech similarly unites Democrats congregating around quality journalism and free press in the Trump era, and Republicans who vouch for expansive protections of commercial speech and unbridled campaign finance during elections. All in the name of free speech.

But this is not the story I tell in the paper, or at least not the whole story. Against the background of free speech’s rise to a pivot right in the U.S., I aim to explain the strong stance recently taken by the Court of Justice of the European Union when it comes to privacy and data protection rights in Europe. The EU data protection regime comes on top of, and is complemented by, the European Convention on Human Rights. It is no exaggeration to claim that privacy has been one of the most jurisgenerative provisions in the case law of the Strasbourg Court, covering issues as varied as the storing and destruction of fingerprints and DNA samples to aspects of homosexuality, transsexualism, adoption and artificial procreation, restrictive abortion grounds and even environmental protection.

Using the case law of the European Court of Human Rights as a stepping stone, the CJEU asserted its ambitions of a constitutional adjudicator. One of the oldest critiques mounted at the CJEU is for applying a double standard of proportionality when reviewing for human rights violations Union acts and Member Sate acts – the Court is said to have been rigid regarding the Member States, but lenient regarding the Union. With the entry into force of the EU Charter of Fundamental Rights however, the Court did not shy away from applying strict proportionality also against Union measures, first invalidating on data privacy grounds an EU law provision, then an EU directive in its entirety. When it ordered a search engine to remove outdated information about an individual in Google Spain, the CJEU anticipated the legislative process under way with the General Data Protection Regulation’s provision on a right to erasure. Further, the Court invalidated the Safe Harbor agreement on US-EU data transfers, and in that context found for the first time that the essence of rights – to privacy and to an effective judicial remedy – are infringed. Beyond the technicalities of handling data transfers, the CJEU was putting an emphasis on Europe’s ‘otherness’ in relation to the U.S.; ‘otherness’ that can perhaps revolve around the centrality of data privacy rights. Stefano Rodotà, one of the drafters of the EU Charter of Fundamental Rights, uses language that remarkably mirrors ardent First Amendment supporters in the U.S.: “…the right to data protection may not be considered as subordinate or subject to other rights. It means that we must go beyond the simple balancing test technique, because of the very nature of data protection as “fundamental right”…” (I am grateful to Chris Hoofnagle for this insight). Finally, much like free speech, data privacy rights have a bipartisan appeal – they can stir support from both progressives concerned with the expansive powers of tech companies and libertarians concerned with keeping a ‘small government’.

In the article, I sketch the status of leading rights in the U.S. and the EU as carrying both a potential and certain risks for their respective constitutional systems. When it comes to a more granular analysis of data privacy’s potential as a proxy for European constitutional identity, further research will need to necessarily focus on possible institutional differences in the stance of the European Commission compared to that of the CJEU and the European Parliament on the one hand, while taking into account civil society activism – on the other.

Bilyana Petkova is Assistant Professor at Maastricht University School of Law; Fellow in Residence, Electronic Information Privacy Center- Washington D.C.; Visiting Fellow, Yale Information Society Project

Suggested citation: Bilyana Petkova, ‘Privacy as Europe’s First Amendment’ IACL-AIDC Blog (25 February 2019)