EU protection of the right to privacy and right to personal data and their connection to the Gonzales case and beyond
KLRI (Korea Legislation Research Institute) Journal of Law and Legislation Volume 10 Number 1, 2020, p 139-164
26 Pages Posted: 29 Aug 2018 Last revised: 8 Jun 2020
Date Written: August 20, 2018
Protections of the right to privacy concerning publications have a relatively long history in Europe. The first part of the article explores comparatively and historically, the mechanisms of such protections originated in the XIXth century Germany and synthesized brilliantly by Brandeis and Warren in the US. This part includes a brief overview of European supranational protection of the right to privacy, as framed in article 8 of the European Convention of Human Rights and, more recently, in article 7 of the EU Charter of Fundamental Rights.
The protections of the right to personal data in digital processing is a more recent occurrence in Europe. Few national constitutions or international instruments recognize such rights, and even fewer jurisdictional remedies are associated with it. There are some significant exceptions, mainly at the supranational level, such as the EU Data Protection Directive (recently replaced by the EU General Data Protection Regulation) and Article 8 of the EU Charter of Fundamental Rights. The second part of the article briefly explores these protections, their inherent logic, and the implementing mechanisms as clearly different from those characterizing the protections of the right to privacy.
The third part examines the articulation between the two protection mechanisms, as reflected by the reasoning of the European Union Court of Justice on the famous Gonzales case. The decision implemented a right of de-listing as "right to be forgotten on the Internet," by the search engines. We propose a new reading for the reasoning of the Court, which underlines the essential role of protections of the right to privacy in grounding and circumscribing the data protection mechanisms of the EU Data Protection Directive within the decision.
Last but not least, the article asses that the newly adopted EU General Data Protection Regulation will not affect the precedent created by the Gonzales and the adequate remedies it implemented.
Keywords: Right to Privacy, Personal Data Protection, Right to Be Forgotten on Internet, Data Protection Directive, EU Court of Justice, General Data Protection Regulation, Methods of Judge, Legal Comparison
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