The identification of the right to privacy and the protection of personal data is the culmination of a long conceptual evolution that, in its various stages, has been enriched with new and further implications and meanings.
It is still characterized today by its incessant changing of contents and by the ability to encompass a series of multifaceted needs.
The current notion of privacy, understood as information privacy, is; therefore, the last meaning that privacy has assumed after social and technological development has prompted, as well as imposed, a reinterpretation of the ancient concept.
Previously - before the creation and dissemination of electronic computers made it possible to collect, organize and transmit an indistinct series of personal information very quickly and for the most diverse purposes - the right to privacy coincided with the right to be let alone of American memory, which attributed to the individual the right to be left alone, in peace, undisturbed; to enjoy, in this way, a reserved and intimate sphere sheltered from the intrusion of others.
This concept, daughter of a historical and cultural context of American origin, found full citizenship within the European legal world and dominated until the needs of a technologically advanced society required its redefinition. In the long evolutionary process of the right to privacy, a crucial role has been played by jurisprudence which, in the face of the uncertainty of doctrine and the silence of the legislator, has been able to recognize the juridical value of the needs for the protection of privacy, thus soliciting the legislator to abandon his state of inertia and take action to guarantee complete and effective protection of the right in question.
After a long and troubled process of recognition and affirmation, the initial right to be left alone has therefore transformed into the right to protect personal data, which now becomes a fundamental right of the person both within the national legal system. Then in the community bed.
The regulatory cornerstones that protect the "right to privacy"
The EDU Convention Starting from the European side, the first reference is Article 8 of the European Convention on Human Rights (henceforth ECHR), in which the right to private life has found its consecration.
Article 8, entitled "Right to respect for private and family life": in the 1st paragraph, it reads that
"Everyone has the right to respect for his private and family life, his home and his correspondence";
the 2nd paragraph allows, similarly to the Italian Constitution, limitations on the protection of private life in cases strictly indicated by law and motivated by overriding public interest, namely that
"There cannot be interference by a public authority in the exercise of this right unless such interference is required by law and constitutes a measure which, in a democratic society, is necessary for national security, for public security, for the economic well-being of the country, for the defense of order and for the prevention of crimes, for the protection of health or morals, or for the protection of the rights and freedoms of others ".
Article 8 of the ECHR has allowed the European Court of Human Rights (henceforth the ECHR) to determine, and progressively broaden, the meaning to be ascribed to the concepts of "private life" and "correspondence", throwing bases for the positivisation of a right to conscious control over any form of circulation of one's personal information.
The concept, developed within the Council of Europe, by Convention 108 of 1981 (the so-called Strasbourg Convention), includes an articulated enunciation of principles to which the various national legislations should have conformed to ensure compliance with the right to privacy of individuals about any processing of data concerning identified or identifiable subjects.
Furthermore, on 27 July 2004, with the judgment of the Sidabras vs. Lithuania (European Court of Human Rights), ECtHR has given a very broad interpretation of the right to privacy provided for by art. 8 of the ECHR. The Strasbourg judges held that the protection offered by this article extends to include the right of everyone to develop social relationships protected from any form of discrimination or social stigmatization, thus also allowing them the full enjoyment of their private life.
The Court, therefore, considered the overall position of the person in society, stating that full respect for privacy is a condition for equality.
The essential features of the right to the protection of personal data
Today, privacy, in its many facets, is therefore fully protected both nationally and internationally. However, it is a concept that is strongly affected by social, cultural, and above all, technological changes, which are always in the process of evolution and definition. In this context, therefore, the notion of "digital sovereignty" assumes a strong value as the hub of the necessary national and international state protection.
Removing this area from legal protection is intended to expose the fundamental rights to the will of a few, opening the way to digital totalitarianism.
Based on what has been observed up to now, the emergence of the right to the protection of personal data is due to the development of information and telematic technologies and the central role assumed by information in the new economic and social context.
Each associate must, therefore, be aware: on the one hand, of the need not to prevent one's data from circulating if it wants to fully belong to today's world; on the other hand, the dangers to individual rights and freedoms that can derive from such circulation. Now, the fundamental question, on the front of the protection of the interested party, is to guarantee him the power of control over the data concerning him.
The possession of this information by third parties assumes, in fact, an absolute legal value that not only cannot be subtracted for protection but cannot be destined for a regulatory limbo, if only for the imperative that derives from the obligation of protection of the unintentional rights inherent in our constitutional order. In this perspective, the content of the right to the protection of personal data can only be substantiated in the right of each person to have their data, if processed by another person, be protected in the manner and according to the standards defined by law, so to allow him, in practice, to maintain control over the circulation of information referable to him and to freely determine the conditions and limits of their processings for the nature of this right, the prevailing doctrine - giving due importance to the expression "right" used by art. 1 of the legislative decree 30 June 2003, n. 196 (Privacy Code), where it expressly recognizes to anyone the right to the protection of personal data concerning him - has reconstructed it as a right of primary rank, supporting its attributability to the category of personality rights..
It is understood that, depending on whether one accesses the monistic or pluralistic thesis, as a specific concretization of the only law of the personality or as a new and autonomous figure of the law of the personality. Of these subjective legal situations, the right to the protection of personal data shares: the common rationale: which is to be aimed at enhancing the dignity and self-determination of the human person, substantiating itself in the set of faculties and powers that confer control over the bodily and intangible qualities that constitute their individuality (the personality, precisely); the distinctive characteristics traditionally recognized in the extra patrimonial, unavailability, non-transferability, imprescriptibility and surrogation, even if the evolution of society and the economic system is inexorably leading to a debasement of some of these connotations (think of the progressive capitalization of these rights and their consequent availability or transmissibility).
Well, all this inevitably ends up undermining the very identity of a category whose conceptual boundaries appear challenging to demarcate, based on a catalog of structurally mobile and constantly evolving subjective legal situations. In confirmation of this reconstruction, moreover, more than one textual fact is found: the reference to human dignity contained in art. 2, paragraph 1, of the privacy code, the mention of the right to the protection of personal data alongside the other rights of the person, as well as the express reference to this category made by more than one article of the same code (Article 26, paragraph 4, letter c), 60 and 71.
The reconstruction of the right to the protection of personal data as a fundamental right of the individual determines the critical consequence that any limitation must respect the canons of reasonableness and proportionality and cannot go so far as to affect the essential content of the right itself. The qualification adopted must not, however, lead to a "flattening of the right to the protection of personal data on the other, more traditional, rights of the personality" and prevent the understanding of the peculiar features of the relative discipline.