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Private Law Solutions in European Data Protection: Relationship to Privacy, and Waiver of Data Protection Rights

Netherlands Quarterly of Human Rights, Vol. 28, No. 2, pp. 179-198, 2010

19 Pages Posted: 16 Jun 2010 Last revised: 4 Mar 2014

Nadezhda Purtova

Tilburg Institute for Law, Technology and Society; Tilburg Law School

Date Written: February 19, 2010

Abstract

This paper seeks to define how the legal categories of privacy and data protection correlate in the European legal system, and what the effects such a correlation has on the mode of data protection. Since the norms of the EC data protection law did not provide a conclusive answer, this paper turned to the ECHR for guidance. As a roadmap of analysis this paper picked the dichotomy between privacy and data protection based on the negative rights and positive obligations explained by De Hert and Gutwirth. The analysis of Art. 8 ECHR case-law led to the conclusion that the European Court of Human Rights does not limit the application of Art. 8 ECHR to private sphere only, and the provision on privacy protection has been applied as giving individuals positive rights (for instance, to refute false information about oneself) and imposing on the states affirmative obligations to create and ensure functioning of an effective system of data protection. The conclusion has been reached that European legal order treats data protection as a privacy interest.

Besides, it has been shown that legal recognition of such a close relationship is much more than just a matter of conviction on the philosophical meaning of privacy. Data protection benefits significantly from enjoying protection of a fundamental right status. Removal of data protection from the scope of privacy rights is not necessary and not desirable. First, development of the ECHR case-law expands privacy protection beyond negative right against state intervention to include affirmative obligations of a state to create a data protection system. Second, treating data protection as anything less than a fundamental right under Art. 8 ECHR will allow its waiver and thereby open the door for a dramatic change in approach to data protection.

Keywords: Affirmative State Obligations, Data Protection, Horizontal Effect, Negative Rights, Positive State Obligations, Property Rights in Personal Data, Waiver of Fundamental Rights

Suggested Citation

Purtova, Nadezhda, Private Law Solutions in European Data Protection: Relationship to Privacy, and Waiver of Data Protection Rights (February 19, 2010). Netherlands Quarterly of Human Rights, Vol. 28, No. 2, pp. 179-198, 2010. Available at SSRN: https://ssrn.com/abstract=1555875

Nadezhda Purtova (Contact Author)

Tilburg Institute for Law, Technology and Society ( email )

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

Tilburg Law School ( email )

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

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