Chilling Effects and Transatlantic Privacy
18 Pages Posted: 15 Apr 2019
Date Written: March 2019
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).
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