Towards an Internal Hierarchy of Values in the EU Legal Order

Date01 June 2016
Published date01 June 2016
DOI10.1177/1023263X1602300303
Subject MatterArticle
23 MJ 3 (2016) 421
TOWARDS AN INTERNAL HIERARCH Y
OF VALUES IN THE EU LEGAL ORDER
Balancing the Freedom of Speech and Data Privacy
B   P  *
ABSTRACT
is article compares American constitutional law and practice on the First Amendment
freedom of speech vi s-à-vis data privacy in the US to the r ight to freedom of expression v is-à-vis
data privacy rights unde r European law.  e purpose of the comparison is to sk etch the current
state of an internal hierarchy of values for each of the two (EU and US) legal orders. Wherea s
in the US commercial interests seem to have take n precedence in the balance between freedom
of speech and data privacy, the EU is at a crossroads. As will be laid out in this article the
Court of Justice of the European Union (CJEU) has started to show preferenc e for data privacy
rights over commercial interes ts through the cases Google Spain, Digital R ights Ireland and
Schrems.  e idea that both freedom of ex pres sion and data privacy have a political and an
autonomy aspect is developed.  e main task of the CJEU in the balancing exercise is not
to prioritize one right over the othe r.  e CJEU can rather justif y when one aspect of a right
might under the circumstances of a par ticular case be deemed more important than the aspe ct
of another right. Following this notion further, when the right to access to documents is at
stake, the autonomy aspect of da ta privacy rights needs to give way to political values such as
accountability and self-government protec ted by the right to access to documents. I sugge st a
calibrated proportionality test for the CJEU modelle d on the US tiers of scrutiny.
Keywords: balancing; CJEU; commercial interests; ECtHR; Google Spain; the First
Amendment
* Max Weber Postdoctora l Fellow, European University Institute a nd Visiting Fellow, Information
Society Projec t at Yale . For their useful comments and ge neral support, many than ks to Gráinne de
Búrca, Deirdre Cu rtin, Tuomas Ojanen, Robert Post, Ch ristoph Sobotta, Mart in Scheinin, Bruno De
Witte and the orga nizers of the conference ‘A Balanc ed Data Protection in the EU ’ held in Brussels on
October 19, 2015, as well as the p articipants of the Europea n University Institute themat ic group on
Governance, C onstitutionalism a nd Democracy 2015–16.
Bilyana Petkov a
422 23 MJ 3 (2016)
§1. INTRODUCTION
As the Charter of Fundamental Rights of the European Union (the Charter) has only
recently become binding, the Court of Justice of the European Union (CJEU) has only
heard a handfu l of cases in which freedom of expres sion needs to be balanced wit h privacy
and data protection rights (‘d ata privacy rights’).1 One of its landmark decisions in this
respect is Google Spain.2 When considering how the CJEU’s case law should develop
a er Google Spain, the case law of the European Court of Huma n Rights (ECtHR) may
be a natural point of reference due to the vast experience this Court has in this area.
Keeping the case law of the ECtHR in mind, this article extends the analysis of the
balance between data privacy rights and freedom of expression in the EU to American
constitutional law and practice on the First Amendment freedom of speech in the US
Constitution.  e pur pose of this comparison is to sketch the c urrent hierarchy of values
that transpires f rom the case law of each of the two highest courts , the CJEU and the US
Supreme Court.
is article will show that on the one hand in the US commercial values seem to
have taken precedence in the bala nce between freedom of expression and data privacy.
On the other hand, the EU is at a crossroads. Recent cases show an emerging pattern:
in Google Spain, Digital Rights Ireland3 and Schrems4 the CJEU shows preference for
data privacy rights over commercia l interests.  e idea that both freedom of expression
and data privacy rig hts have a polit ical and an autonomy aspect is developed. Although
di cult to disentangle, the concept of autonomy can best be linked to self-realization:
as such, it constitutes a core element of both the right to f reedom of expression and data
privacy rights.5 e CJEU’s main task in carrying out a balancing exercise is not to
prioritize one right over the other. Instea d, on the basis of a gradually emerging inter nal
hierarchy of values in the EU lega l order, t he CJEU can justify when one aspec t of a right
might under the circu mstances of a particula r case be deemed more important than t he
aspect of another right. In line with this logic, when the right of access to documents
is at stake data privacy’s autonomy aspect needs to give way to political values such as
1 Charter of Fund amental Rights of t he European Union, [2012] OJ C 326/391. Alongside the establ ished
right to privac y in Article7, the EU Char ter includes a separate rig ht to data protection in Art icle8. I
use the term ‘ data privacy’ rig hts when referring to Ar ticles7 and 8 of the Cha rter. For an argument in
favour of a combined read ing of Articles7 and 8 on t he internet, see H. Hijma ns, e Eu ropean Union
as a Constitutional Guardian of Inter net Privacy and Data Protection: the Story of Article 16 TFEU
(Dissertat ion, Universiteit van Amsterd am and Vrije Universiteit Brussel , 2016).
2 Case C-131/12 Google Spain and Go ogle, EU:C:2014:317.
3 Joined Cases C -293/12 and C-594/12 Digital Rights Ire land Ltd. v. Minister fo r Communications , Marine
and Natural Resource s and Kä rntner L andesregierun g and Others, EU:C:2014:238.
4 Case C-362/14 Schrems, EU:C:2015:650.
5 For instance, b oth the freedom of e xpression and data pr ivacy rights c an serve to boos t one’s reputation.
For a more theoretica l discussion on t he concept of autonomy, see R. Dagger, Civic Virtues: Rights ,
Citizenship, and Republican Liberalism (Oxford University Press , 1997).

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