Chilling Effects and Transatlantic Privacy

18 Pages Posted: 15 Apr 2019

See all articles by Jon Penney

Jon Penney

Harvard Law School; Harvard University - Berkman Klein Center for Internet & Society; Citizen Lab, University of Toronto

Date Written: March 2019

Abstract

Can the European and American privacy divide be bridged? Bilyana Petkova, in this issue, offers compelling reasons to be sceptical. One recent solution, advanced by Pierluigi Perri and David Thaw, is that common concerns about chilling effects can bridge that divide. However, their discussion of chilling effects was narrow and their analysis limited to procedural transatlantic convergence. This essay explores this idea with a more systematic and sustained discussion of chilling effects theory and research, while arguing that chilling effects does, in fact, provide possibilities for substantive transatlantic privacy. I argue that “chilling effects” is often treated as an ahistorical singular idea but there are, in fact, three separate paradigms of chilling effects theory, research and understanding: (1) speech; (2) privacy and autonomy; and (3) collectivist. I set out each and argue that the conceptualisation of chilling effects exemplified by the second paradigm—focused on privacy‐related chilling effects—offers a shared normative and theoretical foundation to bridge the transatlantic privacy divide. I also explore how new chilling effects theory and research can impact substantive and procedural transatlantic privacy efforts, including re‐thinking consent; empowering stronger judicial enforcement of privacy claims; and balancing competing claims in substantive proposals like the Right to be Forgotten (RTBF).

Suggested Citation

Penney, Jonathon, Chilling Effects and Transatlantic Privacy (March 2019). European Law Journal, Vol. 25, Issue 2, pp. 122-139, 2019, Available at SSRN: https://ssrn.com/abstract=3371143 or http://dx.doi.org/10.1111/eulj.12315

Jonathon Penney (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
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Cambridge, MA 02138
United States

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
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Cambridge, MA Nova Scotia 02138
Canada

Citizen Lab, University of Toronto ( email )

Munk School of Global Affairs
University of Toronto
Toronto, Ontario M5S 3K7
Canada

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