The Dutch Ministry of the Interior is currently conducting an assessment of the fundamental rights situation in the Netherlands. Later this year this will probably result in a report called ‘De Staat van de Grondrechten’ (‘The State of Fundamental Rights’) and an accessory entitled ‘Nationaal Actieplan Mensenrechten’ (‘National Human Rights Action Plan’). In this context the Ministry recently requested input from several NGOs, among which Privacy First. Below is our advice:
Top 7 of issues that deserve a place in the State of Fundamental Rights and the National Human Rights Action Plan:
1. Active adherence to as well as protection, fulfilment and promotion of the right to privacy
Clarification: privacy is both a Dutch constitutional right as well as a universal human right. As with all human rights, the Dutch government accordingly has the obligation to 1) respect, 2) protect, 3) fulfil and 4) promote the right to privacy through proper legislation and policy. However, since '9/11' there have almost solely been made restrictions to the right to privacy, instead of enhancements of it. This constitutes a violation of the above-mentioned general duty to actively fulfil the right to privacy. The same goes for related rights and principles such as the presumption of innocence and the ban on self-incrimination (nemo tenetur).
2. Constitutional review
Clarification: the Netherlands is only familiar with constitutional ‘‘review’’ by civil servants and members of the Dutch House of Representatives when it comes to the development of new legislation. Unfortunately there is no Dutch Constitutional Court and, oddly enough, constitutional review of formal legislation by the judiciary is outlawed in the Netherlands. It is partly on account of this that the Dutch Constitution has become a dead letter over the last decades. It is therefore recommended to create a Constitutional Court as soon as possible and to abrogate the ban on constitutional review.
3. Collective legal means
Clarification: owing to a development of legal restrictions within the case law of the Dutch Supreme Court, over the last decades it has become increasingly difficult for foundations and associations to legally defend the social interests they advocate for through the collective right to action (Article 3:305a Dutch Civil Code and Article 1:2 paragraph 3 Dutch General Administrative Law Act, both links are in Dutch). Because of this the effective and efficient functioning of the Dutch constitutional State and legal economy have come under severe pressure. It is therefore recommended for the government to actively respect, protect and fulfil the collective right to action. For instance by no longer instructing the State attorney to plea for the inadmissability of foundations and associations in relevant lawsuits. Moreover, the ban on direct appeal against generally binding regulations (Article 8:3 Dutch General Administrative Law Act, in Dutch) is to be abrogated.
4. Voluntary instead of compulsory biometrics
Clarification: the premise in a healthy democracy under the Rule of Law should be that citizens may never be obliged to cede their unique physical characteristics (biometric personal data) to the government or the business sector. After all, this constitutes a violation of the right to privacy and physical integrity. Moreover, within companies, service providers, employers, etc. this leads to unfair trading practices. With the planned introduction of an ID card without fingerprints, in this area the Dutch government is taking a first step in the right direction. In line with this, we advise the Dutch government to plea at the European level for a passport with voluntary instead of compulsory taking of fingerprints.
5. Anonimity in public space
Clarification: the right to be able to travel anonymously and not to be spied upon has become increasingly illusory in recent years, especially through technological developments such as public transport chip cards, camera surveillance, cell phone tracking, etc. Both the government as well as the business sector are obliged to actively reinstate, protect and fulfil the right to privacy in terms of anonymity in public space through the introduction of public transport chip cards that are truly anonymous (privacy by design), the abrogation of camera surveillance unless strictly necessary, the development of privacy-friendly mobile telephony and apps, etc. For all the legislation and policies in this field, privacy, individual freedom of choice, necessity, proportionality and subsidiarity are to be leading principles.
6. Privacy by design
Clarification: all privacy-sensitive information technology is to comply with the highest standards of privacy by design. This can be achieved through the use of privacy enhancing technologies (PET), among which are state-of-the-art encryption and compartmentalization instead of centralization and the coupling of ICT. At the European level this is to become a strict legal duty for governments as well as the business sector, with active supervision and enforcement in this area.
7. Privacy education
Clarification: in terms of human rights education the Netherlands is threatening to become a third world country. In the long run this puts the continued existence of our democratic constitutional State at stake. It equally puts the right to privacy in danger. A privacy-friendly future begins with the youth of today. To that end privacy education is to become compulsory in primary, secondary and higher education. The government should play an active role in this.