Exploring the non-absolute nature of the right to data protection

Jeanne Pia Mifsud Bonnici

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Digitalization, Law, and Regulation Legal Rights and Human Rights European Criminal Justice and Data Protection

Abstract

In two recent judgements, the Court of Justice of the European Union stated that ‘The right to the protection of personal data is not, however, an absolute right, but must be considered in relation to its function in society’ (Eifert, para 48). This paper considers the ‘non-absolute’ nature of the right to data protection. Being a relatively new right, the boundaries of this right in the Charter are still somewhat unexplored. This paper considers five aspects that can be seen as setting boundaries to the otherwise absolute nature of the right to data protection: (a) consideration of the function of the right to data protection in society; (b) positive delimitations of the right that come from the formulation of the right (Article 8) in the Charter; (c) limitations on the right provided for in Article 52 of the Charter; (d) close connections with Article 7 of the Charter and Article 8 ECHR; and (e) the detailed provisions in current data protection secondary legislation and the future data protection regulation framework. Based on the reflections on each of these boundary-setting aspects, the paper argues that in spite of occasional vagueness and conflicting approaches of each of the aspects, understanding of the right to data protection has evolved since its first formulation in the Charter. There is a subtle and gradual distancing from the initial understanding of the close relationship with the right to private and family life. This gradual distancing is a positive development as the two have different foundations, scope and purposes. Yet it is only when both are taken together that the shared common objective of providing effective protection to citizens' personal and family life can be achieved.

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References

2009Data Protection in the Case Law of Strasbourg and Luxemburg: Constitutionalisation in Action 2009Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights 2009Reinventing data protection?2012The fundamental right of data protection in the European Union: in search of an uncharted right 2004How do online investors seek information, and what does this mean for regulation?2005Data Protection Comes of Age: The Data Protection Clauses in the European Constitutional Treaty

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