Comparing Constitutional Privacy and Data Protection Rights within the EU

Abstract

Although both data protection and the right to privacy (or respect for private life) are recognised within the EU Charter, they are otherwise generally seen as having very different constitutional histories. The right of privacy is often seen as traditional and data protection as novel. Based on a comprehensive analysis of rights within EU State constitutions, it is found that this distinction is overdrawn. Only five current EU States recognised a constitutional right to privacy prior to 1990, although approximately three quarters and also the European Convention do so today. Subsidiary constitutional rights related to the home and correspondence but not honour and/or reputation are more long-standing and this helps link the core of privacy to the protection of intimacy. Constitutional rights to data protection emerged roughly contemporaneously and were often linked to a general right to privacy but are still only found in around half of EU States. There is also no clear consensus on specific guarantees, although around half of the States which recognise these do include rights to transparency and a slightly lower number right to rectification. This could suggest that data subject empowerment over a wide range of connected information is an important emerging particularity tied to data protection as a constitutional guarantee.

Keywords: Constitutions, Correspondence, Data Protection, Defamation, Domicile, European Convention, European Union, EU Charter, Human Rights, Honour, Informational self-determination, Image Rights, Intimacy, Private Life, Privacy, Reputation