Constitutional Privacy and Data Protection in the EU

Constitutional Privacy and Data Protection in the EU

• 1.
  Dr David Erdos Facultyof Law University of Cambridge
• 2.
  Introduction  EU Charter(2000) includes rights to:  Respect for private life (privacy) (Art. 7) &  Protection of personal data (data protection) (Art. 8)  Historical understanding of these very different:  European Convention (1950) appears to confirm this “Privacy is an ̒old and venerable̕ right, entrenched for many years as a fundamental right in national constitutions & international texts” (Tzanou, 2013) r2hox (Flickr Data protection is “an innovation for traditional human rights” (Benöhr, 2013); a “a ̒third generation̕ fundamental right” (Oostveen & Irion, 2018)
• 3.
  What About theLonger National Picture?  Look at ̒privacy̕ and ̒data protection̕ rights within formal national constitutional trajectory of EU27  Contemporary Texts: Constitute Project Database  Past Texts: World Constitutions Illustrated; CoE etc.  Where EU State fully subsumed then examine text from other entity e.g. Czech Republic pre-1920  Austria etc.  Not attempting analysis of whether rights respected in practice (& in many cases egregiously not) r2hox (Flickr
• 4.
  ʻPrivacyʼ (Inviolability) ofHome  1822: Earliest inclusion (in Portugal)  1900: Around half recognise  1950: Almost 90% recognise  Today: All except France in formal text
• 5.
  ʻPrivacyʼ (Secrecy) ofCorrespondence  1822: Earliest inclusion (again in Portugal)  1900: Around one third recognise  1950: Approximately three quarters recognise  Today: All except Ireland & France in formal text
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  Personal Honour/Reputation  1826:Earliest inclusion (in Greece but later dropped)  1950: One recognition (Spain)  1980: One more (Portugal)  Today: Approximately 40% (11) recognise
• 7.
  General ʻPrivacyʼ/Private LifeRight  1960: Earliest inclusion (in Cyprus)  1980: Three more (Greece, Portugal, Spain)  Today: Approximately 75% (20) but with significant outliers e.g. France, Italy and Germany (although is ʻfree personalityʼ right)
• 8.
  Data Protection RightsRecognition  1976: Earliest inclusion (in Portugal)  1980: One more (Spain)  Today: Approximately half (14) recognise. What data protection rights are recognised? • In 3 EU States only a general right • In 7 EU States both general and some specific • In 4 EU States only specific rights
• 9.
  Specific Data ProtectionRights  Of those States which recognise, average number is 2-3 (cf. 6 in EU Charter)  Around 40-60% grant some substantive recognition to:  Transparency (most common)  Rectification  Legal basis for processing  Secrecy/privacy of data  Similar number specifically mention supervision right
• 10.
  Conclusions  Long historyof constitutional ̒privacy̕ only valid as regards specific home & correspondence rights  Emergence of general privacy & data protection rights have been broadly coterminous & interlinked  However, general privacy more common  Data protection may add specific focus on broad subject empowerment but core remains inchoate r2hox (Flickr