Private Law Solutions in European Data Protection: Relationship to Privacy, and Waiver of Data Protection Rights

AuthorNadezhda Purtova
Publication Date01 June 2010
SubjectPart A: Article
Netherlands Q uarterly of Human R ights, Vol. 28/2, 179-198, 2010.
© Netherlands I nstitute of Human Ri ghts (SIM), Printed in the Net herlands. 179
PRIvAte LAW soLUtIons In eURoPeAn
DAtA PRoteCtIon: ReLAtIonshIP
to PRIvACy, AnD WAIveR of
DAtA PRoteCtIon RIghts
N P*
In this article a possibilit y of a private law approach to data protection is considered.
e main thesis of the contribution is that the European legal order allows only a limited
scope of contractual and property rights with regard to personal data, restr icted by the
consideration to prese rve human rights. In the piece it is rst proved that in the system
of the ECHR data protection interests are treated under the umbrella of Article 8 right to
privacy. As a result , the author concludes that Articl e 8 right to privacy does n ot imply
a right to waive data p rotection but provides a legitimate ground to restrict freedom of
contract in that area.
e focus of this article is the possibility of private law solutions of the data protection
problem in Europe and on the issue of waiver of data protection rights as a foundation
of such a possibility.1 e interest in the issue of waiver is well-timed given the
recent I. vs Finland decision2 of the Eu ropean Court of Human R ights. is decision
strikes to the c ore of the pro-waiver arguments, that is it prevents furt her attempts to
* Doctoral cand idate at TILT (Tilburg Inst itute for Law, Technology, and Society), Tilburg Universit y,
the Netherla nds, www.uvt.n l/tilt; the author c an be contacted via e-mai l n.purtova@uvt. nl.
1 Ar ticle 8 of the C harter of Fundamental Rights of the Eu ropean Union (EU) denes the rig ht to
protection of persona l data as fol lows: ‘Protec tion of personal data: 1. Everyone has the right to
the prote ction of personal d ata concerni ng him or her. 2. Such dat a must be processed fairly for
specied pur poses and on the basis of the consent of the person concer ned or some other legitimate
basis laid down by law. Everyone has the right of access to data whic h has been collected concernin g
him or her, a nd the right to have it rect ied. 3. Compliance with these rules shall be subject to
control by an indepe ndent authority.’
2 ECt HR, I. vs Finland, judgme nt of 17 July 2008, Application No. 20511/03, unrepor ted, available in
the HUDOC dat abase (www.echr.coe.i nt).
Nadezhda Pur tova
180 Intersentia
withdraw data protection from the legal protection of Article 8 European Convention
on Human Rights (ECHR or the C onvention) right to privacy.3
e possibility to wa ive data protection guarantees on ma rket conditions in
exchange for money, goods, or services is a cor ner-stone of many proposals that
reconsider the current European approach to data protection.4 Some of these proposals
seek to substitute or complement existi ng data protection mechanisms by private law
tools like contr actual and property instruments.5 Some contend th at data protection
interests a re not to be considered as pa rt of a fundamental hum an right to privacy:
privacy is por trayed as a purely defensive mechanism against intervention into some
secluded personal sphere. Privacy protect ion mechanisms, according to those claims,
are unable to take care of personal data protection which requires more ‘oensive’
approach – not prohibiting but channelli ng processing of persona l information. For
that re ason, they argue, data protection considerations are not powerful enough to
serve as a ground for legiti mate restrictions of freedom of contract. e latter, when
balanced against d ata protection interests, has precedence, and dat a protection
rules can be contracted around freely.6 In this article it is argued to the contrary,
namely, that the human rights issues can not be avoided in the data protection debate.
Although the langu age of the European Convention on Human Rights is silent on the
matter, the recent case-law conrms that Article 8 right to privac y fulls the function
of channelling government information practices as well as in the private sector
by imposing posit ive obligations to create and enforce an eec tive system of data
protection. erefore, when consideri ng the possibility to waive data protection, one
should also t ake its human rights dimension into account. For th at reason, although
the text of the Convention is not explicit on the matter, this a rticle concludes that
3 In th at jud gment, the Court not only imposed on a State part y to t he Convention a positive
obligation to create and enforce an eect ive system of data protection, but also found the State liable
for data protect ion violations by private p arties. e lat ter conrmed a wide scope of the protected
privacy rights and prepa red a ground to include the entire body of data protection rules into privacy
interests protec ted by Article 8 ECHR .
4 For rec ent evaluation and pro posals of improvement of t he 1995 Data protection d irective see, e .g.,
Robinson, Nei l, Graux, Hans, Botte rman, Maar ten and Valer i, Lorenzo, ‘Review of the European
Data Protect ion Directive’, Technical R eport Prepared for t he Information Com missioner’s Oce,
RAND, Sant a Monica, 2009.
5 For the a rguments in favour and against a private law approac h to personal data see, inter alia,
Cuijpers, C ., ‘A private l aw approach to privacy; ma ndatory law obliged?’, SCRIPT-ed , Vol. 4, No.
4, 2007, pp. 304–318; Blok, P., Het Rech t op Privacy: een onderzoek naar de betekenis van het begrip
‘privacy’ in het Nederlandse en Ame rikaanse recht [e right to privacy: a study on the meaning
of the concept of ‘privacy’ in Dutc h and US law], Boom Juridische Uitgevers, Amsterdam, 2002;
Prins, J.E.J., ‘When personal d ata, behavior and vir tual identit ies become a commodity : Would a
property rights approac h matter?’, SCRIPT-ed, Vol. 3, No. 4, 2006, pp. 270–303; and Rouvroy, A. and
Poullet, Yves, ‘e Right to Informat ion Self-Deter mination a nd the Value of S elf-Development:
Reassessi ng the Importance of Pr ivacy for Democracy’, in: Gu twirth, S. et al., Reinventing Data
Protection?, Springer, Berlin, 200 9, pp. 45–77.
6 Blok, o p.cit. (note 5); and Cuijpers, loc.cit. (note 5).

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