A new approach to the right to privacy or how the European Court of Human Rights embraced the non-domination principle

As it is currently regulated, the right to privacy is predominantly conceived as a subjective right protecting the individual interests of natural persons. In order to determine whether this right has been affected in a specific situation, the so-called ‘non-interference’ principle is applied. Using this concept, it follows that the right to privacy is undermined if an ‘infringement’ with that right by a third party can be demonstrated. Although the ‘infringement’-criterion works well when applied to more traditional privacy violations, such as a third party entering the home of an individual or eavesdropping on a private conversation, with respect to modern data-driven technologies, it is often very difficult to demonstrate an actual and concrete ‘infringement’ on a person's right or freedom. Therefore, an increasing number of privacy scholars advocate the use of another principle, namely the republican idea of ‘non-domination’. At the core of this principle is not the question of whether there has been an ‘interference’ with a right; rather, it looks at existing power relations and the potential for the abuse of power. Interestingly, in recent times, the European Court of Human Rights seems to accept the republican approach to privacy when it deals with complex data-driven cases.