Property and Privacy: European Perspectives and the Commodification of Our Identity
Information Law Series, Vol. 16, pp. 223-257, 2006
35 Pages Posted: 26 Sep 2006
This contribution analyzes the appeal, benefits and limitations of a highly market-oriented argument suggested to resolve the current problems of personal data protection in our digital world: vesting a property right in personal data. Many of the arguments that have been forwarded in favor of such a proprietary perspective derive from American sources. There has been relatively little discussion in Europe of whether such an approach could resolve the pressing problems of personal data protection - a fact that is not entirely surprising, given the European human rights-oriented approach to privacy protection. This contribution aims to add European perspectives to the debate. It will show that although it is all too often argued that the creation of a property right is not in line with the human rights-based approach to privacy, the European system appears to offer considerable leeway and even openings for a property rights model. But the analysis will also show that although the property approach may have some appeal, albeit for rhetorical purposes, doubts rise about whether it will offer the claimed prospects of achieving a higher level of personal data protection. Specifically, the final intent of this contribution is to show that the property argument fails to recognize the data protection challenges that arise with present-day developments in the area of context-aware computing. In a society in which our behavior and identities (i.e. not individual data as such), become the object of commodification, the debate on data protection mechanisms must be structured along lines of control and visibility, rather than ownership. This then will require a debate on the role of the public domain in providing the necessary instruments that will allow us to know and to control how our behavior, interests and social and cultural identities are 'created'.
Keywords: personal data protection, property rights, identity protection, context-aware computing, protection of profiles
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