Think before you share: Personal data on the Social Networking Sites in Europe; Article 8 ECHR as a tool of privacy protection

Sammanfattning: The current research aims to find out how the European legal system may approach the challenges of the online social networking and their effects on the right to privacy in personal data protection of the European users. Since the answer closely depends on the nature of the right in question (human right or property right), the thesis involves a comparative analysis of the American and European privacy models. Ruling on the human rights nature of personal data protection in Europe, as well as on the correspondent privacy abusing practices of the online social networking business on the European ground, the examination further concentrates on the Article 8 ECHR possibilities to protect the right to privacy in personal data. The analysis of the ECHR case law will lead to conclude on the matter of existence of positive obligations of the States parties to the Convention to ensure an effective enjoyment of the right to privacy of the European users of the SNSs, in a sense of a recognition of an indirect horizontal effect of the Convention’s provisions on the relationships between the users of the services, from one hand, and the social networking companies, providing their services in Europe, - on the other (irrespective of the territories of the countries from which such services are provided – be they within the European borders, or, as is the case with Facebook and other the most popular social networking platforms, - within the borders of the USA). At the European level, the Council of Europe’s Member States are under a positive obligation to act in a proactive manner with a view to securing the effective enjoyment of protected rights. The failure to do so may render a State liable under the ECHR, if it can be established that the State has failed to take appropriate measures within its power to protect the individuals under its jurisdiction from the right to privacy violations on the part of, inter alia, American social networking companies. Thus, when considering the emerging trends in online social networking and in anticipation of potential (as well as of already existing) human rights violations in connection with its use, the Council of Europe Member States need to prepare themselves to deal with situations related to Article 8 with regard to the practices of treating the other people’s personal data by online business.