Privacy and Human Rights in the US and Europe: Worlds Apart

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The New York Times published on February 26 an article that echoes what my last blog posting about the differences between US  and European law regarding freedom of speech and privacy. I particularly liked the observation of a Google attorney that privacy in the EU is a human-dignity right, not the consumer right that it is seen as in the United States. As a result of the vastly different attitudes towards privacy, there is often a clash between US companies and law, and European ones, over privacy issues.

An example of the different views towards privacy can be seen in the protection it is given in Europe. Article 8 of the European Convention on Human Rights says, “Everyone has the right to respect for his private and family life, his home and his correspondence.” In contrast, the word privacy does not exist in the US constitution (although the concept is protected by the 4th Amendment) and the Supreme Court struggled to craft the right to privacy out of the “penumbra of rights” understood to be found in the Constitution but not specifically enumerated. This was done in the 1965 case Griswold v. Connecticut, which established the right to marital privacy.

Another interesting difference between the continents is the idea that privacy is a “human-dignity” right. The concept of “dignity” is also used by the European against bullying (or harassment for us). In the US, to have a legal claim of harassment, the harassing behavior has to be tied to one’s protected class, such as sex, race, religion or disability. If you are harassed or bullied just because the harasser is a mean person but not because you belong to a protected class, you don’t have a legal claim in the US (we call it protected-class-based harassment). In contrast, the Europeans believe in “dignity-based harassment.” It is enough that harassing behavior violates one’s dignity, regardless of whether it is tied to and connected to a protected class.

US lawyers often tell clients who work in a toxic work environment, but not tied to a protected class, that there is no law against being an asshole. European lawyers don’t have to tell their clients the same thing as their anti-bullying laws protect against precisely that type of behavior. This is yet another example of European lawmakers providing more protections to workers and to residents. I am in favor of giving US workers more protection than what we have. For too long, companies and businesses have done what they wanted with no consequences. That shouldn’t be the case and it shouldn’t be the exception rather than the rule that courts and legislatures protect business at the workers’ expense.

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