The European Court of Human Rights (ECtHR) recently decided, that we all have the right to live in a “space of socialisation which makes living together easier“. Thus stated by the ECtHR in the case of S.A.S. v. France whereby it found that the French „Burqa ban“ does not violate the European Convention on Human Rights (ECHR).
Imagine a space of socialisation with the “possibility of open interpersonal relationships“ – doesn’t that sound wonderful? It might do so at first sight. But on closer inspection, it suddenly becomes a space of full disclosure and rather terrifying, especially since it is entirely unclear where this space begins and where it ends.
One line has already been drawn by the European Court of Justice (ECJ) in its judgement on the right to be forgotten: individuals have a right to control their data and can ask Google to delete personal information from search results. Meaning that no one is obliged to a full and frank disclosure on the internet.
Another limit has recently been set by the German Federal Court of Justice (FCoJ) in its judgement concerning the demand against an online review platform to disclose the identity of its users. It stated that there is no such duty, quite the contrary: the relevant legislation forces the operators to provide anonymous or pseudonymous options. Thus, on the internet the individual has the right to hide his/her identity or to polish it a little. On the internet, it seem, you can be, or pretend to be anybody you want.
The opposite seems to be true in the real world. The ECtHR rules that, in public space, every individual has to show his or her face because “the face plays an important role in social interaction“. Thus, provisions that do not allow the distinction of an individual do not suit the citoyen. Although the ECtHR admits that such provisions might be “the expression of a cultural identity“ (which might be true for the burqa but surely not for profane forms of mummery or the use of a pseudonym), it is willing to accept that citizens must be protected from confronting identities “perceived as strange by many of those who observe it“.
With the creation of a space of socialisation where everybody knows who walks the streets, the right of self-determination as well as the right to respect for private life is effectively suspended. As soon as we leave the privacy of our homes, we enter the Agora and have to meet our fellow citizens in the spirit of fraternity. Withdrawal, veiling and non-participation are considered suspicious behaviour, as any good citizen has nothing to hide and nothing to conceal. Ironically, this logic also applies to the internet. Though it might be legal to remain anonymous while browsing the web, whoever does so runs the risk of being observed by the NSA. Thus, in reality, even the internet doesn’t provide protection against the omnipresent space of socialisation.
It is certainly true that democracy depends on the active contribution of the citizens and on people willing to take responsibility for each other and for society as a whole. To this effect, at least a little living togetheris required. But democracy cannot and should not force citizens to participate. It can only create such choices. In the ECtHR’s space of socialisation,however, citizens are not only forced to communicate and participate, but there also seem to be clear rules of how to participate: veiled or pseudonymous participation aren’t welcome as they do not adhere to the “minimum requirements of life in society“.
Those requirements are left to be defined by the respective majority. Democracy, however, isn’t only about majority rule. It is also about protecting minorities and enabling diversity. In a democratic society “there is no right not to be shocked or provoked by different models of cultural or religious identity“ (see the partly dissenting opinion of judges Nußberger and Jäderblom). There is no right to a “feel-good-atmosphere“. (see the judgement of the German Federal Constitutional Court in the case of the Frankfurt Airport). And society is more than a space reserved exclusively for the preferences of the mainstream.
Thus, behind the space of socialisation and far-fetched ideas of living together hides a view of society which allows majorities to define the public space … infinitely. Beware!