Mahremiyette zarar ilkesi: Dijital çağda bir dilemma

Privacy is often invoked as a shield when an intrusion occurs into people's private lives, and individuals are entitled to seek protection from this shield when they are harmed by the intrusion. This study argues that privacy harm requirement undermines the core of the right to private life and it prevents improvement and entrenchment of privacy rights. In the analysis, illustration of how two leading cultures have established and applied the privacy harm requirement is provided: jurisprudences of the United States and the European Court of Human Rights. The United States Constitution does not include any explicit provision on the protection of privacy rights, the Supreme Court determines whether there is a right to be protected by its case law. The European Court of Human Rights relies on the right to private life articulated by the European Convention of Human Rights, but still determines under what conditions privacy rights would be protected by its case law. Both of the courts employ privacy harm as a criterion to admit a case, and further to decide on the violation. However, in recent years, it is harder than ever to apply this criterion. This is because the privacy is not only an individual safeguard but also a societal value considering the mass surveillance and data collection by secret measures of governments. Persistence in traditional understanding of privacy harm does not make any contribution to improvement and entrenchment of international human rights. On the contrary, harm must be recognized as an inherent character of the privacy interferences without any demonstration. Abolishment of the privacy harm requirement would reconcile different implementations, solve the inconsistencies and contribute to the efforts for a uniformed international privacy standard.