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Privacy First input to Dutch 'State of Fundamental Rights'

Currently, the Ministry of the Interior and Kingdom Relations (BZK) is taking stock of the Dutch fundamental rights situation. This is likely to culminate later this year in a report called 'The State of Fundamental Rights' and an accompanying National Human Rights Action Plan. In that context, the Interior Ministry recently asked for input from various civil society organisations, including Privacy First. Below is our opinion:

Top 7 issues that deserve a place in the State of Fundamental Rights & National Human Rights Action Plan:

1. Active enforcement, protection, promotion and promotion of the right to privacy

Comment: privacy is both a fundamental Dutch right and a universal human right. As with all human rights, the Dutch government is therefore obliged to 1) observe the right to privacy, 2) protect it, 3) promote it and 4) promote it through good legislation and policy. Since '9/11', however, the right to privacy has been almost purely curtailed rather than promoted. This constitutes a violation of the aforementioned general duty to actively promote the right to privacy. The same applies to related rights and principles such as the presumption of innocence and the prohibition of self-incrimination (nemo tenetur).

2. Constitutional review

Comment: The Netherlands has only constitutional "review" by civil servants and MPs when developing new legislation. A Dutch Constitutional Court unfortunately does not exist and constitutional review of formal legislation by the judiciary is strangely prohibited in the Netherlands. Partly because of this, the Dutch Constitution has become a dead letter in recent decades. It is therefore recommended to introduce a Constitutional Court as soon as possible and abolish the ban on constitutional review.

3. Collective remedies

Note: Due to law-limiting developments in Supreme Court jurisprudence, it has been in recent years increasingly difficult become for foundations and associations to be able to defend in court the social interests they represent through the collective action right (Art. 3:305a BW and Art. 1:2(3) Awb). This has put serious pressure on the effective and efficient functioning of the Dutch rule of law and legal economy. It is therefore advisable to actively observe, protect and promote the government's right of collective action from now on, for instance by no longer instructing the state advocate to plead inadmissibility of foundations and associations in relevant court cases. Also, the prohibition of direct appeals against generally binding regulations (Art. 8:3 Awb) to be abolished.

4. Voluntary rather than mandatory biometrics

Explanation: The basic principle in a healthy democratic constitutional state should be that citizens should never be required to surrender their unique body characteristics (biometric personal data) to the government or industry. After all, this constitutes a violation of the right to privacy and bodily integrity. Among companies, service providers, employers, etc., this also constitutes an unfair commercial practice. With the planned introduction of an identity card without fingerprints, the Dutch government is taking a first step in the right direction in this area. In line with this, we advise the Dutch government to advocate at the European level for a passport with voluntary rather than compulsory fingerprinting.

5. Anonymity in public spaces

Comment: the right to travel anonymously and unspoiled in one's own country has become increasingly illusory in recent years, especially due to things like OV chip cards, camera surveillance, GSM tracking, etc. Both the government and industry have an obligation to actively restore, protect and promote the right to privacy in the sense of anonymity in public spaces, for example by introducing anonymous public transport chip cards that are actually anonymous (privacy by design), abolition of camera surveillance unless strictly necessary, development of privacy-friendly mobile phones and apps, etc. In all relevant legislation and policies, privacy and individual choice, necessity, proportionality and subsidiarity should be guiding principles.

6. Privacy by design

Clarification: all privacy-sensitive information technology should meet the highest standards of privacy by design. This can be done by using privacy enhancing technologies (PET), including state-of-the-art encryption and compartmentalisation instead of centralisation and interconnection of ICT. At the European level, this should become a hard legal duty for both government and industry with active monitoring and enforcement in this regard.

7. Privacy education

Comment: in terms of human rights education, the Netherlands is in danger of becoming a third-world country in recent years. In time, this endangers the survival of our democratic constitutional state. This also applies to the right to privacy. A privacy-friendly future starts with youth. To this end, privacy education should be made compulsory in primary, secondary and higher education. The government has an active role to play in this.