22 May 2022 – Online conversation
The conference, bearing the name “COFOLA = Conference for Young Lawyers”, has been organized by the Faculty of Law, Masaryk University every year since 2007. Its principal mission is to provide doctoral students and young scientists with space to present their scientific work and its results. This year, the conference was partially held online and one of its sections formed a part of the Central European Professors’ Network, coordinated by the University of Miskolc – Central European Academy. Its topic was Current Problems of Rights to Privacy: Digital Technologies & Covid-19.
The first contribution was presented by Šimon Chvojka under the title Roadblocks in Privacy’s Problem Evaluation by the Academia: Slovak Example. Chvojka perceives as one of the ways to bridge the gap in the information available to the public to make use of the right to information. This process may, however, not always be completely seamless. In his contribution, he therefore describes one particular case concerning the right to privacy. The case involved a Slovak tool called “smart quarantine”, which was introduced at the beginning of the COVID-19 pandemic; a request for a Data Processing Impact Assessment made by the competent governmental authority in this regard; and an over 22-month-long (and still pending) legal battle on this assessment against an inflexible public authority. Chvojka first briefly explains this tool used by the Slovak government and then goes on to describe the administrative and court proceedings concerning an access to its assessment. In doing so, he addresses two key questions: first, “is the obliged entity required to provide information which, despite its legal duty, it does not have in its possession?”, and second, “can an administrative court review a first-instance decision refusing access to information without a previous appeal?”
The second contribution was made by Julia Starybrat and its title was The Catalogue of Crimes in Poland in the Era of COVID-19. Starybrat presented a catalogue of crimes violating the right to privacy in Poland during the pandemic. She noted that the right to privacy is one of the fundamental human rights guaranteed by every legal system in democratic countries, including Poland, and also by international and European Union laws. Regarding the Polish legal system, Starybrat devoted special attention to acts violating Article 47 of the Polish Constitution, while following from statistical data. This topic is extremely important because of the current global developments, including primarily the continuing digitization and the outbreak of COVID-19. The pandemic has become a pretext for an extensive surveillance of society. The software applications used by the states in the context of quarantine surveillance have apparently begun to interfere excessively with the citizens’ privacy. The problem was presented in terms of legality – which of the surveillance measures used were necessary and which, on the other hand, lacked any rational justification.
The third contribution was presented by Tomasz Bojanowski. Under the title The Right to Privacy and the Criminal “Pre-trial” Formula, Bojanowski analyzed the right to privacy in the context of the “pre-trial criminal procedure”. First, he focused on this concept of criminal process, especially in the context of operative and examination activities. Then, he described the basis of the right to privacy and the right to anonymity in terms of international law and selected provisions of the Polish legal order. After that, he pointed out the inherent conflict between the rights to privacy and anonymity, on the one hand, and the activities taking place before a criminal trial, such as operative and examination activities, on the other hand. While international law, European Union law and individual democratic legal orders uphold human rights, including the right to privacy, it is still the responsibility of individual states to ensure public policy and security, and to prevent and detect crime. The law must therefore be tailored to both these aspects. Responsibility in this regard is borne primarily by the judiciary. For the most part, the courts are the ones that decide whether operative activities violated the fundamental right to privacy in a specific case. This issue becomes even more important in times of thriving information society, widespread digitization and the development of artificial intelligence. Bojanowski believes that the law should protect the core of the right to privacy, while enabling competent authorities to pursue activities aimed to ensure the safety of citizens.
The author of the fourth contribution was Konrad Burdziak and its title read Does the COVID-19 Pandemic Justify an Excess of the Powers of Public Officials and their Interference with Human Privacy? Considerations in the Context of Polish Criminal and Constitutional Law. According to Burdziak, the COVID-19 pandemic brought many challenges for the authorities. The steps they took, including the introduction of a duty to prove compliance with quarantine measures by presenting photographs or information on vaccination, frequently interfered with the human right to privacy. The need to ensure security of the state and its citizens forced public officials to take actions which often bordered on violation of the law. There might be situations where an interference with the freedoms and rights of a particular person goes beyond the powers of a public official, but it nevertheless serves to protect society or the state. The contribution aimed to answer the question of whether the COVID-19 pandemic justifies an excess of the powers of public officials and their interference with human privacy. Burdziak attempted to answer this question based on Polish experience and Polish criminal and constitutional law.
The fifth contribution was presented by Klaudia Łuniewska under the title The Right to Privacy in the Context of Obtaining Classified Information about Citizens by Governmental Authorities, including secret services and law enforcement agencies. Łuniewska notes that the right to privacy has been guaranteed by a number of documents, both international and domestic. This institute of law gives everyone the right to the protection of private and family life, honor and reputation, and the right to decide about their personal life. The right to privacy is a comprehensive concept with a broad scope of definitions, which includes, inter alia, family life, inviolability of the home, human personal rights, human integrity, protection of personal data, confidentiality of correspondence and the content of messages. The right to privacy is not absolute. Most countries currently allow possible interference by governmental authorities with the citizens’ right to privacy in justified cases, provided that the statutory conditions have been met in this regard. This is permissible in the event of a threat, inter alia, to the public order, health, public morals, or the freedoms and rights of others. The interference and attempt to limit the right to privacy must have a legal basis and be proportionate. The interference of public authorities in the private sphere of an individual may take place, in particular, through the use of telecommunications data control, operative control, checking and recording the content of telephone conversations (wiretapping), as well as a number of other actions. As part of the presentation, the issue of the right to privacy was presented in contrast to the powers of Polish governmental authorities within the framework of possible surveillance of citizens. Specialized governmental agencies may obtain classified data about citizens, including telecommunications data (e.g. subscriber data, billings, geolocation data, data from websites), as well as materials from the field of operative control (e.g. non-judiciary wiretapping of fixed, mobile and satellite phones, wiretapping of people and rooms, GPS, electronic wiretapping, obtaining and recording the content of correspondence, access and inspection of the content of shipments). Modern technologies have created a number of opportunities to check on citizens. People themselves often provide personal information to governmental authorities; in some cases, this type of intelligence does not suffice, requiring operative activities pursued by special services and law enforcement agencies. The most important issues regarding Polish legislation in this area were presented as part of the contribution, together with statistics on the use of tools for the surveillance of citizens by governmental authorities.
The sixth contribution was authored by Kateřina Novotná under the title The Right to Privacy of Detained Migrants. Novotná focused on the detained migrants’ right to privacy from the perspective of EU and Czech law. The main goal of the contribution was to define the individual attributes of the detained migrants’ right to privacy and to evaluate the Czech laws in this regard. She dealt with the question of how the restrictions associated with the COVID-19 pandemic affected the right to privacy of detained migrants.
The final contribution by David Sehnálek was titled The Right to Privacy and Universities in Times of COVID-19 – Have Universities the Power to Order a Lecturer to Lecture Online? Sehnálek’s paper focused on the topical issue of online transmission (“streaming”) and recording of lectures by universities and their storage in the universities’ information systems. This practice, which was a necessity at the time of COVID-19 and the only way to teach, persisted even after the pandemic measures ended. Students naturally welcome this way of teaching as it relieves them of the obligation to attend lectures (which are optional). Teachers, however, are often against it. After all, lecturing for both present students and those connected by means of distance communication is challenging. In addition, there is no personal contact with the students and the possibility of discussion is limited. Moreover, students have stopped attending lectures en masse, so lecturers speak to the few individuals present instead of lecturing for hundreds of students. The legal dimension of the issue is not insignificant either. Indeed, the case of Antović and Mirković vs. Montenegro dealt with by the ECtHR raised some doubts about the legality of the university’s action in a situation where a lecturer is ordered to teach online against his/her will. Sehnálek therefore discusses this case in detail and links it to the current new and slightly different situation.
