Belgium, Courts, Privacy and Data Protection: An Inventory of Belgian Case Law From the Pre-GDPR Regime (1995–2015)

Abstract

This Contribution focuses on the use made by the Belgian Constitutional Court, the Cour de Cassation and the ordinary courts of the right to privacy and the right to have personal data protected as anchored in the Belgian Constitution, the Belgian Data Protection Act and the European sources. A selection of their judgements, all dating from the era before the new EU Data Protection Regulation, are discussed along the lines of their impact on health privacy, workplace privacy, surveillance and social media privacy. Our analysis shows a great deal of European loyalty on behalf of the Belgian Constitutional Court towards European trends to favour privacy and data protection. In stark contrast stands the case law of the Cour de Cassation mainly focused at preserving prosecutorial interests and employer’s interests at the detriment of privacy and data protection interests. In our conclusions we discuss tendencies towards cosmopolitanism and tribalism, the dramatic impact of evidence law and patterns of litigation.

Our analysis covers the data protection era where Belgian law was indirectly governed by EU Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23 November 1995, 31). The Directive contributed to the roll-out of data protection and harmonized the data protection provision in the EU Member States but suffered from implementation weaknesses and lack of recognition. A certain lack of recognition of the importance of data protection in the European (and Belgian legal) landscape disappeared with the the EU General Data Protection Regulation 2016/679 (“GDPR”) (OJ L 119, 5 Ma.2016, 1–88 ) that repealed Directive 95/46/EC and came into force on 25 May 2018 with direct applicable provisions. Further studies are needed to study the impact of the new European provisions on the work and output of the Belgian courts.

Keywords: Belgian Constitutional Court, Belgian Cour De Cassation, Belgian Ordinary Courts, Belgian and European Provisions on the Right to Privacy and the Right to Have Personal Data, Constitutional Patriotism, Exit Strategy, Evidence Law