Default Entitlements in Personal Data in the Proposed Regulation: Informational Self-Determination Off the Table ... and Back on Again?

Abstract

This paper offers to assess the proposed General Data Protection Regulation (the Commission proposal and the LIBE compromise text) through the framework of default entitlements in personal data. The notion of default entitlements comes from economic analysis of law and provides new insights into the implications of the data protection reform. While, under the principle of informational self-determination the default entitlements should lie with the individual, the Commission is shown to assign a great deal of default rights to others, including the information industry. This article cautions against the possibility of reducing the European system of data protection rooted in the values of individual autonomy and informational self-determination to a mere set of administrative rules channeling the flow of personal data, yet without a clear direction.

Keywords: default entitlements, data protection reform, informational self-determination, legitimate interest, consent, right to be forgotten, purpose limitation, Article 8 of the EU Fundamental Rights Charter