EU Protection of the Right to Privacy and Right to Personal Data and their Connection to The Gonzales Case and Beyond
0
조회
0
다운로드
0
인용
0
참고문헌
키워드
초록
Protections of the right to privacy concerning publications have a relatively long history in Europe. The first part of the article explores comparatively and historically, the mechanisms of such protections originated in the 19th century Germany and synthesized brilliantly by Brandeis and Warren in the U.S. This part includes a brief overview of European supranational protection of the right to privacy, as framed in article 8 of the European Convention of Human Rights and, more recently, in article 7 of the EU Charter of Fundamental Rights. The protections of the right to personal data in digital processing is a more recent occurrence in Europe. Few national constitutions or international instruments recognize such rights, and even fewer jurisdictional remedies are associated with it. There are some significant exceptions, mainly at the supranational level, such as the EU Data Protection Directive (recently replaced by the EU General Data Protection Regulation) and Article 8 of the EU Charter of Fundamental Rights. The second part of the article briefly explores these protections, their inherent logic, and the implementing mechanisms as clearly different from those characterizing the protections of the right to privacy. The third part examines the articulation between the two protection mechanisms, as reflected by the reasoning of the European Union Court of Justice on the famous Gonzales case. The decision implemented a right of de-listing as “right to be forgotten on the Internet” by the search engines. We propose a new reading for the reasoning of the Court, which underlines the essential role of protections of the right to privacy in grounding and circumscribing the data protection mechanisms of the EU Data Protection Directive within the decision. Last but not least, the article asses that the newly adopted EU General Data Protection Regulation will not affect the precedent created by the Gonzales and the adequate remedies it implemented.
Abstract
Protections of the right to privacy concerning publications have a relatively long history in Europe. The first part of the article explores comparatively and historically, the mechanisms of such protections originated in the 19th century Germany and synthesized brilliantly by Brandeis and Warren in the U.S. This part includes a brief overview of European supranational protection of the right to privacy, as framed in article 8 of the European Convention of Human Rights and, more recently, in article 7 of the EU Charter of Fundamental Rights. The protections of the right to personal data in digital processing is a more recent occurrence in Europe. Few national constitutions or international instruments recognize such rights, and even fewer jurisdictional remedies are associated with it. There are some significant exceptions, mainly at the supranational level, such as the EU Data Protection Directive (recently replaced by the EU General Data Protection Regulation) and Article 8 of the EU Charter of Fundamental Rights. The second part of the article briefly explores these protections, their inherent logic, and the implementing mechanisms as clearly different from those characterizing the protections of the right to privacy. The third part examines the articulation between the two protection mechanisms, as reflected by the reasoning of the European Union Court of Justice on the famous Gonzales case. The decision implemented a right of de-listing as “right to be forgotten on the Internet” by the search engines. We propose a new reading for the reasoning of the Court, which underlines the essential role of protections of the right to privacy in grounding and circumscribing the data protection mechanisms of the EU Data Protection Directive within the decision. Last but not least, the article asses that the newly adopted EU General Data Protection Regulation will not affect the precedent created by the Gonzales and the adequate remedies it implemented.
참고문헌 (22)
- Rudolf Von Jhering, "L’esprit du Droit Romain dans les diverses phases de son développement" (1880), A. Marescq, Aîné
- Rudolf Von Jhering, "Rechtsschutz gegen injuriöse Rechtsverletzungen, Yearbooks for the dogmatics of today’s Roman and German private law" (1885)
- Ronald Leenes, "Data Protection and Privacy: (In)visibilities and Infrastructures" (2017), Springer International Publishing
- Paul De Hert, "Reinventing Data Protection?" (2009), Springer
- James Q. Whitman, "The Two Western Cultures of Privacy: Dignity Versus Liberty", Yale L.J., 113, pp.1151~ (2004)
- Samuel D. Warren, "The Right to Privacy", Harv. L. Rev., 4, pp.193~ (1890)
- Cillian Gorman, "Is Society More Reasonable than You? The Reasonable Expectation of Privacy as a Criterion for Privacy Protection", Master, pp.2011
- Bart van der Sloot, "Data Protection and Privacy: (In)visibilities and Infrastructures" (2017), Springer International Publishing
- Ronald Leenes, "‘Code’: Privacy’s Death or Saviour?", Int’l Rev. L. Comput. & Tech., 19, pp.329~340 (2005)
- Jef Ausloos, "The ‘Right to be forgotten’ - Worth remembering?", Comput. L. & Sec. Rev.,, 28, pp.3~4 (2012)
- Pamela Samuelson, "Privacy as Intellectual Property?", Stan. L. Rev., 52, pp.1125~ (2000)
- Paul M. Schwartz, "Property, Privacy, and Personal Data", Harv. L. Rev., 117, pp.2055~ (2004)
- Jacob M. Victor, "The EU General Data Protection Regulation: Toward a Property Regime for Protecting Data Privacy", Yale L.J., 123, pp.513~528 (2013)
- 41 ER 1171 (Eng.), , 1849
- "Von Hannover vs. Germany (No. 59320", 00), 2004-VI Eur. Ct. H.R. 50
- "Case C-131", 12, Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD), Mario Costeja Gonzales, 2014
- "Case C-101", 01, Bodil Lindqvist v. Åklagarkammaren i Jönköping, 2003
- "Council Directive 1995", 46, 1995 O.J. (L 281) 31 (EC), 1995
- "Council Regulation 2016", 679, 2016 O.J. (L 119) 1 (EC), 2016
- "Recommendations of the Council Concerning Guidelines Governing the Protection of Privacy and Trans-Border Flows of Personal Data" (1980)[URL]
- "Convention for the Protection of Individuals about Automatic Processing of Personal Data-Convention 108"[URL]
- "Google can’t forget you, but it should make you hard to find" (2014)[URL]