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Deconstructing data protection: the 'Added-value' of a right to data protection in the EU legal order

Lynskey, Orla (2014) Deconstructing data protection: the 'Added-value' of a right to data protection in the EU legal order. International and Comparative Law Quarterly, 63 (3). pp. 569-597. ISSN 0020-5893

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Identification Number: 10.1017/S0020589314000244

Abstract

Article 8 of the EU Charter of Fundamental Rights sets out a right to data protection which sits alongside, and in addition to, the established right to privacy in the Charter. The Charter's inclusion of an independent right to data protection differentiates it from other international human rights documents which treat data protection as a subset of the right to privacy. Its introduction and its relationship with the established right to privacy merit an explanation. This paper explores the relationship between the rights to data protection and privacy. It demonstrates that, to date, the Court of Justice of the European Union (CJEU) has consistently conflated the two rights. However, based on a comparison between the scope of the two rights as well as the protection they offer to individuals whose personal data are processed, it claims that the two rights are distinct. It argues that the right to data protection provides individuals with more rights over more types of data than the right to privacy. It suggests that the enhanced control over personal data provided by the right to data protection serves two purposes: first, it proactively promotes individual personality rights which are threatened by personal data processing and, second, it reduces the power and information asymmetries between individuals and those who process their data. For these reasons, this paper suggests that there ought to be explicit judicial recognition of the distinction between the two rights.

Item Type: Article
Official URL: http://journals.cambridge.org/
Additional Information: © 2014 British Institute of International and Comparative Law
Divisions: Law
Subjects: H Social Sciences > H Social Sciences (General)
H Social Sciences > HC Economic History and Conditions
JEL classification: K - Law and Economics > K2 - Regulation and Business Law > K23 - Regulated Industries and Administrative Law
Sets: Departments > Law
Date Deposited: 18 Jul 2014 09:45
Last Modified: 20 Sep 2021 02:54
URI: http://eprints.lse.ac.uk/id/eprint/57713

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