Does the Risk-Based Approach to Data Protection Conflict with the Protection of Fundamental Rights on a Conceptual Level?

Abstract

There is concern that the protection of fundamental rights has become “scalable” under the risk-based approach to data protection. Is it at odds with rights, in particular the EU fundamental rights framework, that the scope of the legal duties of data controllers depends on the risk posed by their processing operations? This comment will use ethical theory on risk to argue that there is no conflict on a conceptual level.

Keywords: Risk ethics, Risk-based approach, Data Protection, General Data Protection Regulation