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Privacy, Data protection and Lex
Informatica -- lecture 2
Dr. Lee A. Bygrave, 10.2.2006
Catalysts for data protection law
• Technological-organisational trends,
particularly as regards data processing
• Public fears
• Legal factors
Technological-organisational
developments (1)
• Growth in amount of data stored
• Integration of these data
– plans for centralised data registers
– introduction of PIN systems
– national census plans
• Increased sharing of data across
organisational boundaries
• Growth in re-use and re-purposing of data
Technological-organisational
developments (2)
• Increased risk of data misapplication
• Information quality problems
– US surveys
– tendency to ignore quality issues
– poor “cognitive” quality
Technological-organisational
developments (3)
• Diminishing role of data subjects in
decision making processes affecting them
– increasing reliance on “digital persona”
• Increasing “anonymisation” of transactions
– reduction in “cognitive sovereignty”
Technological-organisational
developments (4)
• Causative factors: see list in lecture 1
– information appetite of organisations
– economic significance of information
• IRM, data warehousing, data mining
• Appeal of IT
– enhance performance efficiency (and
appearance of efficiency)
– fascination for the “technically sweet”
Fears (1)
• Two main kinds of fears:
– fears over threats to privacy and related values
– economic fears
• Three sets of first kind of fear:
– Power imbalance
– Loss of control over technology
– Dehumanisation
Fears (2)
• First kind of fears nourished by:
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–
–
–
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trauma of fascist oppression
Watergate
dystopian visions
certain types of IT (mainframe computers)
increased risk consciousness (Beck)
• Surveys of public attitudes to privacy
– what do these tell us?
Fears (3)
• Second main kind of fear:
– focuses upon potential for restricting TBDF and
thereby trade in goods and services
– manifest particularly with OECD Guidelines,
EC Directive on data protection, APEC Privacy
Framework
• Data protection laws as instruments for
economic protectionism?
– Lack of solid evidence
Legal factors (1)
• Positive legal factors
– international human rights, especially right to
privacy
• Art 12 UDHR, Art 17 ICCPR, Art 8 ECHR
– rights in national constitutions
• German Federal Constitutional Court -- Census Act
decision of 1983; Hungarian Constitutional Court -PIN decision of 1991
– administrative law; doctrines on rule of law
Legal factors (2)
• Positive legal factors (cont’d)
– right to privacy/personality in statute and case
law
• Norwegian Supreme Court decision of 1952 on film
screening; US case law
– rules on defamation, discrimination, intellectual
property, fair labour practices
– role of property doctrines?
– role of FOI law?
Legal factors (3)
• Negative legal factors:
– pre-existing rules found insufficient
– pre-existing rules sometimes privacythreatening
• Swedish tradition of open government / FOI
– cross-fertilisation process
• development of data protection guarantees in
international human rights law