Privacy regulation cannot be hardcoded. A critical comment on the ‘privacy by design’ provision in data-protection law

Abstract

‘Privacy by design’ is an increasingly popular paradigm. It is the principle or concept that privacy should be promoted as a default setting of every new ICT system and should be built into systems from the design stage. The draft General Data Protection Regulation embraces ‘privacy by design’ without detailing how it can or should be applied. This paper discusses what the proposed legal obligation for ‘privacy by design’ implies in practice for online businesses. In particular, does it entail hard-coding privacy requirements in system design? First, the ‘privacy by design’ provision in the proposed Regulation is analysed and interpreted. Next, we discuss an extreme interpretation – embedding data protection requirements in system software – and identify five complicating issues. On the basis of these complications, we conclude that ‘privacy by design’ should not be interpreted as trying to achieve rule compliance by techno-regulation. Instead, fostering the right mindset of those responsible for developing and running data processing systems may prove to be more productive. Therefore, in terms of the regulatory tool-box, privacy by design should be approached less from a ‘code’ perspective, but rather from the perspective of ‘communication’ strategies.

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