The right to privacy.

What is the right to privacy?

To understand what the right to privacy (also: the right to respect for private life) entails, we must first clarify what “private life” covers. It includes many aspects that are only known to a limited circle of people because they are closely connected to you or to your personal sphere. Think of events, opinions and beliefs, feelings, relationships, medical information, sexual orientation, communications, location data and (online) behaviour.

Because this information is so personal, it is in principle not intended that everyone can simply find out or use it without your consent or without a legal basis. In Belgium, the right to respect for private life is constitutionally enshrined in Article 22 of the Constitution (Privacy – Art. 22). At European level, privacy is also protected, among other things, by Article 8 of the ECHR and the EU Charter (Articles 7 and 8).

This is a broad right. On the one hand, it allows you to object to any unjustified interference in your private life by other individuals.

Such interference may take the form of surveillance, taking photos or videos without consent in the private sphere, stalking/harassment, intercepting communications, unauthorised access to accounts (hacking), publishing intimate images without consent, doxxing (spreading address and contact details), etc.

On the other hand, you can also object to certain aspects of your private life being made public, for example in the press, on radio or television, or via social media and online platforms. This also means that if you make agreements about the use of certain information (for example in a contract, a settlement after a dispute, or through clear consent), the other party must respect those agreements and may not use the information for other purposes.

Protecting your right to privacy.

There is no single, general “privacy law” that covers all situations. Instead, there are different rules that protect or regulate the right to respect for private life, depending on the context.

A key and still highly relevant framework with major impact is the GDPR (General Data Protection Regulation), which has applied since 25 May 2018. This European regulation determines when personal data may be processed and gives you, as the data subject, more transparency and control. In many cases you have rights such as access, rectification, erasure (the “right to be forgotten”), restriction of processing and objection. Organisations (from large companies to small associations) must also implement appropriate technical and organisational measures to secure personal data.

In Belgium, there is also the Act of 30 July 2018 on the protection of natural persons with regard to the processing of personal data (the “Belgian Data Protection Act”), which further complements the GDPR in Belgian law.

Different sanctions and procedures exist to enforce your privacy rights, depending on what exactly happened. A common route is compensation for material and/or moral damage. In practice, you will generally have to show that there was a fault/violation, that you suffered damage, and that there is a causal link.

However, a judge can also impose tailored measures, for example prohibiting further dissemination, ordering the removal or de-indexing of publications/images, or imposing other measures to limit the harm.

In cases of violations relating to the processing of personal data, an administrative route may also be relevant: you can file a complaint with the Belgian Data Protection Authority (DPA) (File a complaint with the DPA). In certain cases, a privacy violation can also have criminal-law consequences (for example in the case of stalking, hacking or listening to/intercepting communications; the protection of private communications is also embedded in criminal law).

Limits to the right to privacy.

It is not the case that, as soon as your private life is not respected, you automatically and fully have a right to protection. Other interests may also be at stake and must be taken into account. This will depend on the situation and often requires balancing interests. Think of freedom of expression and freedom of the press, or preventing, investigating and prosecuting crimes.

The law itself also permits, in certain situations, an interference with your privacy, for example during a search or in the context of judicial investigations. People who are entitled to social security benefits or social assistance may also have to tolerate certain checks, provided the legal conditions are met (such as proportionality, necessity and purpose limitation).

Moreover, your role in society and your capacity matter. Politicians, artists, TV personalities, members of the Royal Family, etc. generally have to tolerate more public attention. This does not mean that their entire private life is “up for grabs”. In practice, the relevance to the public debate and whether publication is proportionate will always be assessed. Information without a clear social interest (for example purely sensational details) will generally be harder to justify.

Because of the public’s right to be informed in a democratic society, people who hold a high public office cannot always oppose the disclosure of personal information if it impacts their public role. Even if you are not a public figure, your right to privacy is not unlimited.

When your leisure activities necessarily affect your professional activity, it is sometimes accepted that this may play a role in the employment relationship (for example in terms of trust, safety or reputation). Whether certain information is relevant will then have to be assessed taking into account the nature of your profession, the conditions of exercise and the applicable legal framework (including employment law, privacy law and, where applicable, disciplinary rules).