Profiling and the Essence of the Right to Data Protection
Forthcoming in Cambridge Handbook of Consumer Privacy (eds.: Jules Polonetsky, Omer Tene & Evan Selinger)
17 Pages Posted: 6 Feb 2017
Date Written: February 5, 2017
First, we review the legislative history of the provision on automated decision-making in the 1995 EU Data Protection Directive (the 1995 Directive), as it was amended in the process of adopting a new EU General Data Protection Regulation that would enter into force in 2018. Next, we discuss profiling in the context of the case law of the Court of Justice of the European Union (CJEU) in Google Spain, Digital Rights Ireland and Schrems cases. We argue that the CJEU might be making a subtle move in its interpretation of the EU Charter of Fundamental Rights toward protecting against undesirable profiling measures instead of merely protecting against the identification of an individual. Finally, we bring a few hypotheticals of algorithmic decision-making from the employment context, which illustrate how the relevant legislative framework might be applied.
Keywords: privacy, data protection, CJEU, automated decision-making, profiling, employment context
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