Data protection as a fundamental right and the proposal for a

Report
Giuseppe Francesco AIELLO
Phd candidate at Scuola Superiore Sant’Anna, Pisa
[email protected]
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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• Privacy & Data
protection
• E.U. vs. U.S.
• The right to be
forgotten
• The impact of the
Lisbon Treaty on the
data
protection
legislation.
• The
Regulation
Proposal
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Facebook psychological
experiment on users
The experiment was to find if
Facebook could alter the
emotional state of its users and
prompt them to post either more
positive or negative content.
The researchers tested whether
reducing the number of positive
messages people saw made those
people less likely to post positive
content themselves.
Would scrubbing posts with sad
or angry words from someone’s
Facebook feed make that person
write fewer gloomy updates?
The British Information
Commissioner's Office (ICO)
started an investigation
concerning an eventual
infringement
of
data
protection laws.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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E.U.-U.S. PRIVACY COLLISION
Paul M. Schwartz (2013)
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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THE BRUSSELS EFFECT
Anu Bradford, NORTHWESTERN UNIVERSITY LAW REVIEW, 2012
The EU approach to the protection of privacy rights
is spreading outside its boundaries.
 Europe’s unilateral power to regulate global markets:
“RACE TO THE TOP”.
- Multinational corporations have adjusted their global data management
systems to reduce their compliance costs with multiple regulatory regimes
- U.S. firms active in the EU market comply with EU privacy rules even when their
data are processed in the United States.
- Privacy by design.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Samuel Warren and Louis Brandeis
The Right to Privacy, 1890
“What Judge Cooley calls the
right «to be let alone»”
“It is like the right not be assaulted or
beaten, the right not be imprisoned,
the right not to be maliciously
prosecuted, the right not to be
defamed.
In each of these rights, as indeed in all
other rights recognized by the law,
there inheres the quality of being
owned or possessed - and (as that is
the
distinguishing
attribute
of
property) there may some propriety in
speaking of those rights as property”
« Le but des modernes est
la sécurité dans les
jouissances privées ; et ils
nomment
liberté
les
garanties accordées par
les institutions à ces
jouissances. »
(B. Constant, 1819)
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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The fortune of Warren & Brandeis’
privacy
• In the U.S. Supreme
Court,
Kyllo
v.
United States, 533
U.S. 27 (2001) it’s
cited by the majority
and even in dissent.
• Bundesgerichtshof [BGH]
[Federal Court of Justice]
Dec. 19, 1995
• Opinion Of Advocate
General Jääskinen (25
June 2013) on the Google
Spain case.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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“the sacred precincts
of private and domestic life”
(Warren-Brandeis)
ECHR art. 8 Right to respect
for private and family life
1. Everyone has the right to
respect for his private and
family life, his home and
his correspondence.
…
CFREU, Article 7
Respect for private
and family life
Everyone
has
the
right to respect for
his or her private
and family life, home
and communications.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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German “informational
self-determination ”
• Bundesverfassungsgericht Volkszählungsurteil, 1983
The worth and dignity of individuals, who through free
self-determination function as members of a free society,
lie at the core of the constitutional order.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Any content including personal data can
instantly and permanently be made accessible
in digital format world wide.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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“The biggest threat to
free speech on the
Internet in the coming
decade” (Rosen)
ECJ, C-131/12, 13 may
2014, Google Spain SL,
Google Inc. / Agencia
Española de Protección
de Datos
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Lisbon Treaty
• New legal basis
• Interference
of
directives
and
regulations with the
rights laid down in
articles 7, 8 and 11 of the
Charter
• The
right
to
data
protection
must
be
considered in relation to
its function in society
CFREU, Article 8
personal data
Protection of
1. Everyone has the right to the
protection of personal data concerning
him or her.
2. Such data must be processed fairly
for specified purposes and on the basis
of the consent of the person concerned
or some other legitimate basis laid down
by law. Everyone has the right of access
to data which has been collected
concerning him or her, and the right to
have it rectified.
3. Compliance with these rules shall be
subject to control by an independent
authority.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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The right to protection of personal data
is not an absolute right
•
It must be considered in relation to its function in society
Other potentially affected fundamental rights enshrined in the Charter are
the following:
- freedom of expression (Article 11 of the Charter);
- freedom to conduct a business (Article 16);
- the right to property and in particular the protection of intellectual
property (Article 17);
- the prohibition of any discrimination amongst others on grounds such
as race, ethnic origin, genetic features, religion or belief, political
opinion or any other opinion, disability or sexual orientation (Article
21);
- the rights of the child (Article 24);
- the right to a high level of human health care (Article 35);
- the right of access to documents (Article 42);
- the right to an effective remedy and a fair trial (Article 47).
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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CGUE, (Grand Chamber) 8 April 2014, C-293/12 and C-594/12,
Digital Rights Ireland Ltd
Directive 2006/24 harmonising Member States’ provisions concerning the
retention of data in order to ensure that the data are available for the purpose of
the prevention, investigation, detection and prosecution of serious crime.
To establish the existence of an interference with the fundamental right to privacy
it does not matter whether the information on the private lives concerned is
sensitive or whether the persons concerned have been inconvenienced
Article 52(1) of the Charter provides that any limitation on the exercise of the
rights and freedoms laid down by the Charter must be
1. provided for by law,
2. respect their essence
3. and, subject to the principle of proportionality.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Article 16 TFEU
1. Everyone has the right to the
protection of personal data concerning
them.
2. The European Parliament and the
Council, acting in accordance with the
ordinary legislative procedure, shall lay
down the rules relating to the protection
of individuals with regard to the
processing of personal data by Union
institutions, bodies, offices and agencies,
and by the Member States when carrying
out activities which fall within the scope
of Union law, and the rules relating to the
free movement of such data. Compliance
with these rules shall be subject to the
control of independent authorities.
…
Article 286 TEC
1. From 1 January 1999, Community
acts on the protection of individuals
with regard to the processing of
personal data and the free movement
of such data shall apply to the
institutions and bodies set up by, or
on the basis of, this Treaty.
2. Before the date referred to in
paragraph 1, the Council, acting in
accordance with the procedure
referred to in Article 251, shall
establish an independent supervisory
body responsible for monitoring the
application of such Community acts
to Community institutions and bodies
and shall adopt any other relevant
provisions as appropriate.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Changes in the aim
of the E.U. legislation
After 2009
Directive 95/46
the
• ensuring a free flow of • protecting
fundamental right to
personal data within
data protection
the internal market.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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European Data Protection Regulation
Proposal
Heightens individual rights
• Right to be forgotten
• Right not to be subject to a
measure based on profiling
• Data protection impact
assessment
and
prior
authorisation
• Transfer of personal data to
third
countries
or
international organisations
• Centralizes power
in the European
Commission.
• Reduces the policy
autonomy of the
member states.
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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Amendments approved by the European
Parliament’s Civil Liberties, Justice and Home
Affairs Committee
Art.7, § 4 - Consent shall
not provide a legal basis
for the processing, where
there is a significant
imbalance between the
position of the data
subject and the controller.
…The execution of a contract
or the provision of a service
shall
not
be
made
conditional on the consent
to the processing of data
that is not necessary for the
execution of the contract or
the provision of the service
pursuant to Article 6(1),
point (b).
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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The right to contract away privacy
The EU General Data Protection Regulation: Toward
a Property Regime for Protecting Data Privacy
Jacob M. Victor, Yale Law Journal, 2013
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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GIORGIO RESTA
Art. 3, § 2, CFREU: “prohibition on making the human
body and its parts as such a source of financial gain”
It is possible to profit from
intangible attributes of personality
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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STEFANO RODOTÀ
• Article 3 deals with the • Article 8 deals with data
"right to the integrity of
protection,
i.e,
the
the person", i.e. the
electronic body.
protection
of
the
physical body.
“These provisions are directly related to human dignity,
which article 1 of the Charter declared to be inviolable”
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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U.S. Supreme Court
RILEY v. CALIFORNIA
25.6.2014
“Our answer to the
question of what police
must
do
before
searching a cell phone
seized incident to an
arrest is accordingly
simple—
get
a
warrant.”
“modern cell phones,
which are now such a
pervasive and insistent
part of daily life that the
proverbial visitor from
Mars might conclude they
were
an
important
feature
of
human
anatomy”
FUNDAMENTAL RIGHTS AND PRIVATE LAW AFTER THE LISBON TREATY
SUMMER SCHOOL 2014
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