Deconstructing Data Protection: The ‘Added-Value’ of a Right to Data Protection in the Eu Legal Order

Abstract

Article 8 of the EU Charter of Fundamental Rights sets out a right to data protection which sits alongside, and in addition to, the established right to privacy in the Charter. The Charter's inclusion of an independent right to data protection differentiates it from other international human rights documents which treat data protection as a subset of the right to privacy. Its introduction and its relationship with the established right to privacy merit an explanation. This paper explores the relationship between the rights to data protection and privacy. It demonstrates that, to date, the Court of Justice of the European Union (CJEU) has consistently conflated the two rights. However, based on a comparison between the scope of the two rights as well as the protection they offer to individuals whose personal data are processed, it claims that the two rights are distinct. It argues that the right to data protection provides individuals with more rights over more types of data than the right to privacy. It suggests that the enhanced control over personal data provided by the right to data protection serves two purposes: first, it proactively promotes individual personality rights which are threatened by personal data processing and, second, it reduces the power and information asymmetries between individuals and those who process their data. For these reasons, this paper suggests that there ought to be explicit judicial recognition of the distinction between the two rights.

Social and juristic challenges of artificial intelligence

“…To prevent diminishing the data economy and innovation, 'smart' regulation is needed to establish a balance between beneficial uses of data and the protection of privacy, non-discrimination and other legally protected values. The harvesting of large data sets and the use of modern data analytics presents a clear threat for the protection of fundamental rights of European citizen, including the right to privacy (Brkan, 2015;Lynskey, 2014).…”

Conceptualising the right to data protection in an era of Big Data

“…The will theory sees the function of rights as being the granting of control to rights holders to subject others to a duty to respect those rights (Hart, 1955). The rights to remedies outlined in Chapter VIII of the GDPR enhance that view, insofar as they bolster that control (Lynskey, 2014).…”

Balancing National Security and Data Protection: The Role of EU and US Policy‐Makers and Courts before and after the NSA Affair

“…There has been some discussion in the literature as to the distinction between the right to privacy and the right to protection of personal data, but to date this distinction is not entirely clear (Lynskey, ). Moreover, ever since its recognition as a fundamental right, the right to data protection has been continuously expanding in its scope of application, both within and outside of the EU (Brkan, ).…”

“…This leads to the result that the rights embedded in the Charter should be interpreted as having the same meaning and scope as those in ECHR, whereby a more extensive protection is not precluded. 4 There has been some discussion in the literature as to the distinction between the right to privacy and the right to protection of personal data, but to date this distinction is not entirely clear (Lynskey, 2014). Moreover, ever since its recognition as a fundamental right, the right to data protection has been continuously expanding in its scope of application, both within and outside of the EU (Brkan, 2016).…”