A Private Law Approach to Privacy; Mandatory Law Obliged?

15 Pages Posted: 6 Feb 2008

See all articles by Colette Cuijpers

Colette Cuijpers

Tilburg University; Tilburg Institute for Law, Technology, and Society (TILT) ; Tilburg Law School

Abstract

This article contests the general assumption that Directive 95/46/EC concerning the processing of personal data and the free movement of such data requires implementation into mandatory rules of law. In this respect, several arguments are presented in order to stimulate discussion. This discussion is important because the mandatory or regulatory character of the rules laid down in Directive 95/46/EC influence the nature of rights over data in relation to the principle of freedom of contract. Moreover, it touches upon some core issues regarding European law such as the protection of our fundamental rights and freedoms; the scope of these rights, and freedoms and the correlation between them; as well as the scope of the European Union's authority to harmonise rules concerning data protection. Furthermore, the assumption that Directive 95/46/EC requires implementation into mandatory rules of law is the main point of resistance against a private law approach to the right to data protection. If this assumption is successfully disproved, it will clear the way for a wide-ranging discussion as to whether a private law approach to the right to data protection will lead to a more effective system of privacy protection in practice.

Keywords: privacy, data protection

JEL Classification: K00

Suggested Citation

Cuijpers, Colette, A Private Law Approach to Privacy; Mandatory Law Obliged?. SCRIPT-ed, Vol. 4, No. 4, September 2007. Available at SSRN: https://ssrn.com/abstract=1090837

Colette Cuijpers (Contact Author)

Tilburg University ( email )

P.O. Box 90153
Tilburg, DC 5000 LE
Netherlands

Tilburg Institute for Law, Technology, and Society (TILT)

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

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