Constitutional Patriotism and the Right to Privacy
A Comparison of the European Court of Justice and the European Court of Human Rights
This chapter examines the jurisprudence of two European courts — the European Court of Human Rights and the European Court of Justice — on the right to privacy to scrutinize Europe's emerging constitutional culture. Against a backdrop of rapid technological innovation, Europe's different national communities recognize a right to privacy but differ in their definition of the private sphere and the circumstances in which the right to privacy should give way to other values such as freedom of expression. Using the theory of constitutionalism patriotism, the chapter argues that the two European courts should acknowledge and accommodate national diversity on the right to privacy. The deferential approach of the European Court of Justice is applauded and the European Court of Human Rights is encouraged to make greater resort to the doctrine of margin of appreciation in its decision-making.
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