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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.
Notes
1. Directive 95/46/EC of the European Parliament and Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Official Journal of the European Communities L 281, 23 November 1995, 31–50.
2. Starting from Case-101/01 Criminal proceedings against Bodil Lindqvist [2003] ECR I-12971.
3. The Court has referred to the Article of the Charter in its 2008 judgement in Case C-275/06, Promusicae v. Telefónica de Espana [2008] ECR I- 00271. Here the Court noted the direct reference to Article 8 of the Charter in the preamble of the e-Privacy and observed that the said provision ‘expressly proclaims the right to the protection of personal data’ (§ 64).
4. Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen [2010] ECR I-11063.
5. Case C-543/09 Deutsche Telekom AG v Bundesrepublik Deutschland (CJEU 5 May 2011).
6. See X v UK No 8416/78, 19 DR244 (1980) (the Paton case). See also discussion in Harris et al. (Citation2009, 53).
7. Application 59320/00 Decided 24 June 2004
8. Paragraphs 57 and 58.
9. Case C-112/00 Schmidberger [2003] ECR I-5659 (para 80).
10. Charter Article 52 ‘1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’
11. This is the formulation in Article 11 ECHR, in Article 10 some further grounds are added ‘for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’
12. Para 47.
13. One can argue that to some extent this request from the Court to determine the societal function of a fundamental right, goes against the very notion of universality of human rights. Once the meaning of a right is dependent on social contexts, one can expect to have different meanings of the right reducing the possibility of a universal understanding of the right detached from a social context. This can in many ways be a dangerous route to promote, allowing for misuse of fundamental rights.
14. Hondius (Citation1980, 89).
15. Rodotà (Citation2009, 78).
16. Rodotà (Citation2009, 78).
17. See Simitis (Citation1987, 725 et seq.).
18. See for example private initiatives such as Facewatch (http://facewatch.co.uk/cms/), where businesses join together to monitor their customers for criminal behaviour – e.g. watching out for thefts in bars, restaurants or other commercial premises; trouble makers, and so on – by using facial recognition software combined with credit card or other details they may have collected from the customer.
19. See Simitis (Citation1987, 746).
20. For a more pragmatic understanding see Foucault's introduction to Kant's Anthropology (in translation, Foucault Citation2008).
21. This reasoning is not found in the opinion of Advocate General Trstenjak delivered on 17 February 2011 (in Deutsche Telekom). It is, however, the Advocate General's reasoning that Article 12 of the ePrivacy Directive would permit the use of the publication by a third party once the data subject had given the consent for publication of the subscriber information, and that this may have led the Court to shift the reasoning to Article 8 of the Charter and not stop with Article 12 of the e-Privacy Directive.
22. See for a more complete discussion in Harris et al. (Citation2009, 400).
23. Harris et al. (Citation2009, 349 et seq.).
24. Joined cases C-465/00, C-138/01 and C-139/01 Rechnungshof (C-465/00) v Österreichischer Rundfunk and Others and Christa Neukomm (C-138/01) and Joseph Lauermann (C-139/01) v Österreichischer Rundfunk [2003] ECR I-04989.
25. Para 76 of Eifert.
26. In Satakunnan Markkinapörssi and Satamedia and Promusicae v. Telefónica de Espana [2008] ECR I- 00271.
27. Cannataci and Mifsud Bonnici (Citation2005, 8).
28. Hondius (Citation1980, 109).
29. Harris et al. Citation2009, 368 et seq.).
30. See Research Division, ‘Internet: case-law of the European Court of Human Rights’, 6 et seq for a more complete coverage of cases.
31. Eifert para 47
32. González Fuster and Gellert (Citation2012, 73–82).
33. González Fuster & Gellert (Citation2012, 80).
34. Rodotà (Citation2011).
35. Spanish Constitutional Court – Judgment 292/2000 of the Constitutional Court, of 30 November 2000. As reported at http://www.madrid.org/cs/Satellite?cid=1295251697975&pagename=PortalAPDCMI%2FPage%2FPAPI_contenidoFinal
36. de Hert and Gutwirth Citation(2006).
37. Blume (Citation1998, 1–2).
38. de Hert and Gutwirth Citation(2009).
39. Article 9 Directive 95/46/EC.
40. Article 13 Directive 95/46/EC.