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Privacy and Data Protection by Rules Rather than Principles

12 Pages Posted: 7 Aug 2017 Last revised: 24 Aug 2017

Axel Tschentscher

Bern University - Law School

Date Written: August 4, 2017

Abstract

There is hardly any field of the law that has more diversity on both sides of the Atlantic than privacy and data protection. Common opinion often reduces that diversity to a matter of "strong" protection in Europe versus "weak" protection in the United States of America. Discussions about Safe Harbor and Privacy Shield regulation reinforce this perception. This paper, however, argues that the privacy divide is hardly a matter of strong or weak protection, but has deeper roots in different approaches to constitutional rights. While Europe, following the lead of the German Federal Constitutional Court, conceptualizes legal precepts about privacy and data protection as principles with a broad protective scope that result in balancing procedures, the protection in the U.S. is rule based. This results in a more rigid system with stronger emphasis on the legislatures of the states rather than flexible adjudication by the courts.

Keywords: Constitutional Law, Privacy, Data Protection

JEL Classification: K00

Suggested Citation

Tschentscher, Axel, Privacy and Data Protection by Rules Rather than Principles (August 4, 2017). Available at SSRN: https://ssrn.com/abstract=3013830

Axel Tschentscher (Contact Author)

Bern University - Law School ( email )

Institute for Public Law
Schanzeneckstrasse 1
Bern, Bern 3012
Switzerland
+41-31-631 88 99 (Phone)

HOME PAGE: http://www.oefre.unibe.ch/ueber_uns/personen/prof_dr_tschentscher_axel/index_ger.html

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