Naming law is also privacy law

Privacy law is a hugely comprehensive area of law whose impact sometimes pops up where one might not expect it to. For those wondering: What privacy rights do I actually have? and How can I invoke my privacy rights? it may come as a surprise that the famous General Data Protection Regulation ("GDPR") is far from the only place in our law where one can find privacy law.

This article will highlight an underexposed intersection of privacy law with family law, as it will explain how the right to privacy affects Dutch naming law.

Dutch naming law in a nutshell

Pursuant to Article 10:20 of the Dutch Civil Code ("BW"), the surname and given names of a person holding Dutch nationality are determined by Dutch law, irrespective of whether the person has another nationality. Book 1 of the Dutch Civil Code contains the core of Dutch law of persons and family law. The law of persons and family law includes, for example, the right to a name and the rights and obligations that the law attaches to family relations. Title 2 of Book 1 of the Dutch Civil Code contains the core of Dutch naming law; international conventions also apply.

The law distinguishes between given names and family names. The rules on family names are generally stricter than those on given names.

Given names

Article 7 of the Convention on the Rights of the Child stipulates that every child has the right to a name from birth. The Netherlands is one of the countries that can ban certain given names. Although there is no 'list of approved given names' in the Netherlands, as there is in Iceland, for example, under Article 1:4(2) of the Dutch Civil Code, the rule applies that given names may not be inappropriate or correspond to existing surnames, unless those existing surnames are also common given names.

Parents who want to give their child inappropriate first names, or people who want to change their first names, could thus be stopped. Such refusal would be done either by the registrar of births, marriages and deaths who has to register a child's birth certificate, or by a judge.

A request for a first name change can be filed at a civil court.

Family names

Family names, commonly called surnames in modern parlance, are different from given names. Indeed, family names imply a familial relationship. In other words, when two people share a family name or use each other's family name, it suggests, rightly or wrongly, that those two people are also related in a legal sense and can claim certain rights insofar as they are granted to family members arising from a family law relationship.

It is illegal to use another person's family name without permission if you thereby give the appearance of being that other person or belonging to their family when in reality that is not true.

Both the father and mother of a child have family names and are naturally in a family law relationship with their child. In the past, children were usually given their father's family name; in modern times, the legislator has given more and more choices to parents. The legislator did decide that children of the same parents, i.e. brothers and/or sisters, should preferably all bear the same family name. So, generally parents can only choose for the first child.

A request for family name change must be submitted to the king of the Netherlands, in practice to the Dutch Ministry of Justice and Security, Dienst Justis.


What is the relationship between naming rights and the right to privacy?

The connection between privacy law and family law is mainly reflected in Article 8 of the European Convention on Human Rights ("ECHR"), which reads as follows:

"Article 8. Right to respect for private and family life

    1 Everyone has the right to respect for their private life, family life, home and correspondence.

    2 No interference by any public authority shall be permitted in the exercise of this right except to the extent provided by law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals or for the protection of the rights and freedoms of others."

The phrase ",his family life," has been shown in legal practice to have family law implications within States signed onto the Convention. Intervention by these states in people's family law relationships, such as intervening in parents' giving their children names or persons choosing their own names, is thus a violation of the right to privacy.

The European Court of Human Rights gave us case law on the subject, including:

• ECHR 22 February 1994 (Burghartz v Switzerland), NJ 1996, 12 m.nt. EAA, par. 24
• ECHR 25 November 1994 (Stjerna v Finland), Series A no 299-B, par. 37
• ECHR 24 October 1996 (Guillot v France), NJ 1997, 324

The following emerges from this authoritative case law on naming rights as part of the right to privacy:

"Given names are a means of identifying individuals within their families and in social traffic. In this sense, given names are a means of personal and emotional identification and thus relate to an individual's private and family life within the meaning of Article 8 ECHR."

This jurisprudence had a particular impact on Dutch name law when assessing requests to change a given name. According to the law, there had to be a sufficiently compelling interest in the change request. However, the question of when there was a sufficiently compelling interest had never been answered in the law and the Dutch legal history. The case law of the European Court of Human Rights thus became the starting point for answering the question of when there was a 'sufficiently important interest' for which a first name change request should be allowed.

The following main rule follows from the Dutch legal history on (first) name changes:

"The administration of justice has an interest in the highest possible degree of consistency in the registration of personal data in the population registry. A change of one or more given names must therefore have a sufficiently compelling interest."

The following test criteria for balancing interests follow from the case law of the European Court of Human Rights:

1.    "In this context, it is always necessary to examine whether there is a ('fair balance') between the interests of the individual on the one hand and the interests of the state on the other, bearing in mind that any state party to the European Convention on Human Rights is entitled to a certain margin of appreciation."

2.    "The decisive factor in determining whether a refusal to grant a given first name constitutes an unjustified interference by the State in the sense of identity is the degree of inconvenience ('the degree of inconvenience') suffered by the person concerned. When assessing the 'degree of inconvenience', all facts and circumstances should be taken into account, including whether it is actually possible for the person concerned to use the preferred first name anyway."

In the Dutch context, such state interests may include: "the highest possible degree of consistency in the registration of personal data", but may also include, for example, interests concerning public order and security with regard to the functioning of investigation and security services. State interests in interfering with the right to privacy must be provided for by law and necessary in a democratic society, as stipulated in Article 8(2) ECHR.
 
The interests of the state must therefore be weighed against the interests of the individual by the court on a case-by-case basis. In practice, therefore, there is a very case-by-case body of case law of first name change requests. It is possibly the case that name change requests used to be granted less frequently before the connection with the right to privacy was recognised in the case law of the European Court of Human Rights.

In other words, from the moment it was recognised in law that a refusal to let a person choose which names he or she carries, or gives to his or her child, infringes the right to respect for a person's private life, including his or her family life. As well as that not every infringement of this by the state, or possibly by third parties, can be justified. The importance of the connection with privacy law for individuals wishing to make use of rights under personal and family law can therefore not be underestimated.

Conclusion

The right to privacy is one of the fundamental civil rights and one of the internationally recognised human rights, recognised and enshrined in the Dutch Constitution and in international treaties. The influence of this right throughout the legal system extends far beyond what one sometimes expects, which means that the right to privacy can sometimes be exploited even for interests that at first glance do not seem to fall directly within privacy law.

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