Third meeting of the Special Commission on the Recognition and Enforcement of Foreign Judgments – November 2017 Preliminary Document ☒ Document Procedural Document ☐ No 8 of November 2017 Information Document ☐ Note on the possible exclusion of privacy matters from the Convention as reflected in Title Article 2(1)(k) of the February 2017 draft Convention Author Cara North, with the assistance of the Permanent Bureau Agenda item Mandate(s) To facilitate discussions on the possible exclusion of privacy matters from the scope of the Objective Convention as reflected in Article 2(1)(k) of the February 2017 draft Convention For Approval ☐ Action to be taken For Decision ☐ For Information ☒ Annexes Annex: The concept of “privacy” – some points of comparison Related documents Churchillplein 6b, 2517 JW The Hague - La Haye | The Netherlands - Pays-Bas +31 (70) 363 3303 +31 (70) 360 4867 | [email protected] | www.hcch.net Regional Office for Asia and the Pacific (ROAP) - Bureau régional pour l’Asie et le Pacifique (BRAP) S.A.R. of Hong Kong - R.A.S. de Hong Kong | People's Republic of China – République populaire de Chine | +852 2858 9912 Regional Office for Latin America and the Caribbean (ROLAC) - Bureau régional pour l’Amérique latine et les Caraïbes (BRALC) Buenos Aires | Argentina – Argentine | +54 (11) 4371 1809 2 I. Introduction1 1. During the second meeting of the Special Commission on the Judgments Project in February 2017, a proposal was made to exclude privacy matters from the scope of the future Convention by adding the words “and privacy” to Article 2(1)(k) of the February 2017 draft Convention, which presently excludes defamation from its scope.2 2. The proponents of the proposal explained that there is a distinction between the violation of privacy rights and defamation; the former relates to the dissemination of truthful information, whereas the latter concerns the dissemination of some falsehood.3 The rationale for this proposal was to avoid controversial questions related to balancing an individuals’ right to privacy with the public interest.4 It was emphasised that it would be desirable to broaden the category of excluded matters beyond that of defamation. 3. Some delegations, including the proponents, raised concerns about the broad definition of the term “privacy”, and whether it would be desirable to extend the non-application of the Convention to a subject matter that may be regarded as undefined and uncertain.5 It was suggested that if privacy matters were to be excluded from the Convention, boundaries would need to be included in the Explanatory Report to the Convention to inform the scope of that exclusion.6 Having discussed the proposal, the Special Commission decided to proceed on the basis that the words “and privacy” should be added in square brackets to Article 2(1)(k), reflecting the need for further discussion at the November 2017 meeting of the Special Commission. 7 4. This note is intended to facilitate that discussion by: (i) identifying challenges in defining the concept of privacy; (ii) identifying a number of categories of cases which could fall within the definition of privacy in order to gauge the parameters of privacy claims; and (iii) providing some suggested options for further discussion with a view to providing greater clarity about the scope of any intended “privacy” exclusion. 5. Finally, to inform the discussion at the November 2017 meeting of the Special Commission, a brief and basic overview of the concept of “privacy” as it is defined and applied in a select number of jurisdictions, namely Brazil, Canada, the People’s Republic of China, the EU, Israel and the United States of America has been included as Annex. 6. At the outset, it should be noted that this paper is intended to distil some points for further discussion and reflection, to assist in focusing the further discussion on the possible exclusion of privacy matters at the November 2017 Special Commission. It is not intended to provide a comprehensive global overview of the voluminous material and literature available on this complex and rapidly developing area of law. 1 This Note was kindly prepared by Cara North, Associate at Lipman Karas LLP and Consultant to the Hague Conference on Private International Law, with the assistance of the Permanent Bureau. 2 This proposal came from the European Union (“EU”) delegation. See Work. Doc. No 100 of February 2017 “Proposal of the delegation of the European Union” (Special Commission on the Recognition and Enforcement of Foreign Judgments (16-24 February 2017)) (hereinafter, “Work. Doc. No 100 from the EU”). Originally, the EU proposed an exclusion for “non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation” from scope. The EU delegation noted that only excluding defamation from the scope would mean that certain countries would not be able to balance the freedom of expression and the right to privacy. The wording of the proposal was then reformulated to “defamation and privacy”. See Minutes of the Special Commission on the Recognition and Enforcement of Foreign Judgments (16-24 February 2017) (hereinafter, “Minutes of the February 2017 SC”), Minutes No 2 of the February 2017 SC, para. 52 and Minutes No 9 of the February 2017 SC, para. 7. 3 Minutes No 9 of the February 2017 SC, para. 9. 4 Ibid. 5 Ibid., paras 12-23. 6 Ibid., para. 13. See also, Minutes No 2 of the February 2017 SC, para. 64. 7 Minutes No 9 of the February 2017 SC, para. 23. See also, Aide memoire of the Chair of the Special Commission of February 2017, para. 14. 3 II. Challenges in defining privacy 7. That defining privacy is a notoriously difficult task has been widely and readily noted by academics, judges and government law reform commissions around the world.8 One obvious difficulty in defining the concept of privacy at a global level is that what is considered “private”, or what should be kept private, differs between jurisdictions and is constantly evolving. In many jurisdictions, the concept of a right to privacy is considered a fundamental right and is often seen as a basic human right reflected in a country’s constitutional framework. 9 It is therefore often heavily influenced by historical, cultural and political values. While in others, the right is largely protected by tort or other existing causes of action,10 if at all. 8. An added complication is that the right to privacy is not generally considered absolute, and in many jurisdictions it is balanced against, and only guaranteed to the extent that it is not prevailed over by, countervailing rights and interests.11 Such interests include public interest (e.g., state security, public safety and public order), freedom of expression or other conflicting rights held by others.12 For that reason, most jurisdictions have deliberately sought not to define clearly and exhaustively the concept of privacy; rather, they have encapsulated that right in broad terms so as to allow the law to evolve over time.13 This is further illustrated by the lack of definition of the exclusion from scope of “privacy” from the Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (the “Rome II Regulation”).14 The Explanatory Memorandum to the Commission Proposal for the Rome II Regulation does not provide an explanation of what is meant by “privacy” under the Rome II Regulation.15 9. A further difficulty in deriving a workable definition of privacy is the rapid rate at which 8 To list just a few examples: R. Gellman, “Does Privacy Law Work?” in P. E. Agre and M. Rotenberg (eds.), Technology and Privacy: The New Landscape, Cambridge (MA), MIT Press, 1998, p. 193 who said: “Lawyers, judges, philosophers, and scholars have attempted to define the scope and meaning of privacy, and it would be unfair to suggest that they have failed. It would be kinder to say that they have all produced different answers.” In Australia, the New South Wales Law Reform Commission cautioned in its May 2007 Consultation Paper 1, Invasion of Privacy, at para. 6.8 that: “If a broad statutory cause of action along the lines of European models were to be introduced in New South Wales, the primary obstacle would be the lack of certainty that it would generate. Legislation providing only for a bald statement of the ability to bring an action for invasion of privacy or private life would make it extremely difficult to know when, and how, conduct would give rise to liability. The difficulty would be pronounced particularly if, as is likely, no satisfactory definition of privacy could be found for inclusion in legislation.” See also, J. McCarthy, The Rights of Publicity and Privacy, 2nd ed., 2005, para. 5.59; D.J. Solove, “A Taxonomy of Privacy”, University of Pennsylvania Law Review, Vol. 154 (3) 2006, at p. 479. 9 As illustrated in the recent landmark unanimous ruling of the Indian Supreme Court recognising a right to privacy in India as forming part of the fundamental right to life and liberty enshrined in the country’s constitution. Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India & Ors, Writ Petition (Civil) No 494 of 2012, para. 134. See also, M. Abrams, “Privacy, Security and Economic Growth in an Emerging Digital Economy”, Paper presented at Privacy Symposium, Institute of Law, Chinese Academy of Social Sciences, 7 June 2006, p. 18, in which Abrams provides: “Privacy law is culturally based. Privacy is considered a fundamental human right in Europe, highly regarded with pragmatic interest in the United States, and is only beginning to emerge as a topic in Asia.