Article 8 ECHR was adopted as a classic negative right, which provides the citizen protection from unlawful and arbitrary interference by the state with his private and family life, home and communication.
The ECtHR, however, has gradually broadened its scope so that the right to privacy encroaches upon other provisions embodied in the Convention, includes rights and freedoms explicitly left out of the ECHR by the drafters of the Convention and functions as the main pillar on which the Court has built its practice of opening up the Convention for new rights and freedoms. Consequently, Article 8 ECHR has been transformed from a classic privacy right to a personality right, providing protection to the personal development of individuals.
Apart from its theoretical significance, this shift might prove indispensable in the age of Big Data, as personality rights protect a different type of interest, which is far more easy to substantiate in the new technological paradigm than those associated with the right to privacy.
There has always been a troubled marriage between privacy and personality rights. Personality rights were the key notion used in the European context, having a long history in the legal systems of countries like Germany and France. The supposed difference between the American and European approach has remained a field of interest.
For example, James Q. Whitman has stressed that American privacy laws have as basic rationale the respect for negative liberty, while the European approach distilled from French and German law focusses on the protection of dignity.
