There's more to it than data protection-Fundamental rights, privacy and the personal/household exemption in the digital age

Computer Law and Security Review

Volumn 29, Issue 5, 2013, Pages 491-500

  Warso, Zuzanna ^a  

^a Helsinki Foundation for Human Rights   (Poland)

Author keywords

Bodil Lindqvist; C 101 01; Directive 95 46 EC; Draft data protection regulation; Online privacy; Personal household exemption; Right to be forgotten

Indexed keywords

C-101/01; DATA PROTECTION; DIRECTIVE 95/46/EC; LINDQVIST; ONLINE PRIVACY; PERSONAL/HOUSEHOLD EXEMPTION; RIGHT TO BE FORGOTTEN;

DATA PROCESSING;

LAWS AND LEGISLATION;

EID: 84885380116     PISSN: 02673649     EISSN: None     Source Type: Journal    
DOI: 10.1016/j.clsr.2013.07.002     Document Type: Conference Paper

References (67)

1. Simon Smith notes that "[i]t is pretty clear that just about anything that could be conceivably done with data is covered by the term processing", qtd. in Flora J. Garcia, 'Bodil Lindqvist:
2. A Swedish Churchgoer's Violation of the European Union's Data Protection Directive Should Be a Warning to U.S.
3. Legislators' (2005). 15 Fordham Intell. Prop. Media & Ent. L.J. 1204. Available at: http://ir.lawnet.fordham.edu/iplj/vol15/iss4/5 accessed 19 February 2013.
4. Charles Fried, qtd. in Colin Bennett, 'In Defence of Privacy: the concept and the regime' (2011). Surveillance & Society, Vol. 8, No. 4. Available at http://library.queensu.ca/ojs/index.php/surveillance-and-society/issue/view/418 accessed 25 January 2013.
5. Ferdinand Schoeman, qtd. in Priscilla Regan, 'Response to Bennett: Also in Defense of Privacy' (2011). Surveillance & Society Vol. 8, No. 4, p. 499. Available at http://library.queensu.ca/ojs/index.php/surveillance-and-society/ issue/view/418 accessed 25 January 2013.
6. Francesca Bignami, 'The Case for Tolerant Constitutional Patriotism: The Right to Privacy Before the European Courts' (2008). Cornell International Law Journal, Vol. 41, No. 2, p. 223. Available at SSRN http://ssrn.com/ abstract1309823 accessed 19 February 2013.
7. On July 6, 2012, the United Nations Human Rights Council adopted Resolution L13 on the Promotion, Protection and Enjoyment of Human Rights on the Internet where it affirmed that the same rights that people have offline must also be protected online. Resolution available at http://geneva.usmission.gov/ 2012/07/Internet-resolution/accessed 19 February 2013.
8. Case C-101/01 Bodil Lindqvist v. A° klagarkammaren i Jönköping [2003] ECR I-12971.opinion of AG Tizanno, paras 17-22.
9. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31.
10. The exception in Article 3(1) concerns processing of personal data in the course of an activity which falls "outside the scope of Community law".
11. Lindqvist, par. 47.
12. Lindqvist, par. 73.
13. See Claire Ovey & Robin White, Jacobs and White: The European Convention on Human Rights 3 (4th ed. 2006), qtd. in Bignami, 'The case for.', p. 233.
14. Lindqvist, par. 74.
15. Lindqvist, par. 84.
16. Lindqvist, par. 86.
17. Other controversies concerned the interpretation of the phrase "outside the scope of Community law" in Article 3(1) (the Court ruled against the opinion of Advocate General), as well as the issue of transfer of data.
18. For more on this topic see: Rebecca Wong and Joseph Savirimuthu, 'All or Nothing: This is the Question? The Application of Art. 3(2) Data Protection Directive/46/EC to the Internet' (2008). John Marshall Journal of Computer & Information Law, Vol. 25, No. 2. Available at SSRN: http://ssrn.com/ abstract1003025, accessed 21 February 2013.
19. These are provisions in Chapter II that concerns "General rules on the lawfulness of the processing of personal data", Chapter IV "Transfer of personal data to third countries"
20. as well as Chapter VI on "Supervisory authority and working party on the protection of individuals with regard to the processing of personal data".
21. These are rights and obligations provided for in Articles 6 (1), 11 (1), 12 and 21 of Directive 95/46/EC.Par. 8.
22. Von Hannover v. Germany, App. No. 59320/00, 40 Eur. H.R. Rep., 23 (2005).Wong, p. 2.
23. Bignami, 'The case for.', p. 230.
24. See Hannover, par. 50: Furthermore, private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (.).
25. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of "private life"(.)".Hannover 69.
26. Francesca E. Bignami, 'Privacy and Law Enforcement in the European Union: the Data Retention Directive' (2007).Chicago Journal of International Law, 233-255, p. 246. Available at http://scholarship.law.duke.edu/faculty- scholarship/1602, accessed on February 2013.
27. Article 29 Working Party Opinion 5/2009 on online social networking, adopted on 12 June 2009, 01189/09/EN WP 163 http://ec.europa.eu/justice/ policies/privacy/docs/wpdocs/2009/wp163-en.pdf
28. The WP cites Satamedia judgment where the Court refers to the Lindqvist case, see supra note 26.
29. According to Article 4(4) of Directive 95/46/EC "Processing means any operation or set of operations which is performer upon personal data or sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, erasure or destruction.
30. whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
31. See Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regards to the processing of personal data and on the free movement of such data (Proposal for a Regulation), 25 January 2012, COM(2012) 11 final, p. 15 par. 3.4.9.
32. DRAFT REPORT on the proposal for a regulation of the European Parliament and of the Council on the protection of individual with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), Committee on Civil Liberties, Justice and Home Affairs, 16 January 2013, p. 213.
33. Proposal for a Regulation, p. 7.
34. According to the report "Attitudes on Data Protection and Electronic Identity in the European Union" (http://ec.europa.eu/public-opinion/ archives/eb-special-359-340-en.htm)
35. Jeffrey Rosen, 'Web Means the End of Forgetting' New York Times, (New York, July 21 2010) http://www.nytimes.com/2010//25/magazine/25privacy-t2.html? pagewantedall&-r0 accessed 3 January 2013.
36. Meg Leta Ambrose, 'It's About Time: Privacy, Information Lifecycles, and the Right to Be Forgotten (2012). Stanford Technology Law Review, Vol. 16, 2012. Available at SSRN: http://ssrn. com/abstract2154374 accessed 4 January 2012.
37. In the perhaps most famous article on privacy ever written Samuel Warren and Louis Brandeis complained about the invasive character of Kodak cameras and the tabloid press.Add full reference.
38. Viktor Mayer-Schö nberger, 'Delete: The Virtue of Forgetting in the Digital Age', (Princeton University Press, 2009).
39. See Proposal for a Regulation, p. 9.
40. See, for example, amendments to Recital 53 and 54.
41. See for example: Peter Fleisher, 'Foggy thinking about the right to oblivion' (Peter Fleischer: Privacy.?, 9 March 2011) http://peterfleischer. blogspot.com/2011/03/foggy-thinking-about-rightto-oblivion.html accessed 1 January 2013.
42. As an attempt to obliterate the facts, the right to be forgotten has even been compared to the praxis of book burning
43. see Peter Fleischer, 'Book Burning, updated for the Digital Age' (Peter Fleisher: Privacy.?, 14 November 2012) http://peterfleischer. blogspot.com/2012/11/book-burning-updated-for-digital-age. html accessed 1 January 2013.
44. Florida Star v. B.J.F., 491 U.S. 524 (1989)
45. see also: Jeffrey Rosen, 'The Right to be Forgotten' February 13, (2012), 64
46. Stan. L. Rev. Online 88 http://www.stanfordlawreview.org/sites/default/ files/online/topics/64-SLRO-88.pdf accessed 1 January 2013.
47. Article 29 Data Protection Working Party, Opinion 1/2008 on data protection issues related to search engines, adopted 4 April00737/EN WP 147 p. 5 http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2008/wp148-en.pdf
48. The case concerns a complaint from a private person who demanded from Google the removal of a number of references from search results.
49. Spanish Data Protection Agency supported this request, but stated at the same time, that the information available on the online page of the local newspaper, where it originally appeared, could stay there because of its lawful character.
50. The Audiencia Nacional, Spain's highest court, had doubts whether the decision about the removal of the data from search indexes was correct and made a reference for a preliminary ruling to the CJEU.
51. The national court asked, among others, whether the data subject should be allowed to request from Google de-indexing of information that refers to him personally.
52. The role of search engines has been recognized by the Council of Europe Committee of Ministers who considered it essential that search engines be allowed to freely crawl and index the information that is openly available on the Web and intended for mass outreach.
53. See Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of human rights with regard to search engines, adopted on 4 April 2012 tps://wcd.coe.int/ViewDoc.jsp?id1929429&SiteCM
54. Irina Baraliuc, Sari Depreeuw, Serge Gutwirth, 'Copyright enforcement in the digital age: a post-ACTA view on balancing fundamental rights' (2013), International Journal of Law and Information Technology, Section 2.
55. This is naturally not to disregard the crucial role of proportionality test in deciding fundamental rights' questions.
56. With the view of protection of fundamental rights online, recently, the CJEU took a more proactive approach and applied the proportionality test in a number of cases concerning copyrights, inching in favor of other fundamental rights.
57. For example, in Scarlet Extended (Case C-70/10), the CJEU held that the EU law precludes the imposition of an injunction by a national court which requires an Internet service provider to install a filtering system with a view to preventing the illegal downloading of files.
58. According to the Court, such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between
59. on the one hand the right to intellectual property, and, on the other, the freedom to conduct business, the rights to protection of personal data and the freedom to receive or impart information.
60. In a similar line also SABAM v. Netlog (Case C-360/10).
61. See: http://www.facebook.com/help/promote.
62. Richard Metzger, 'Facebook: I want my friends back' (Dangerous Minds, 24 October 2012) http://dangerousminds.net/comments/facebook-i-want-my-friends-back accessed 3 January 2013.
63. Barbara Daskala, Ioannis Maghiros, "Digital Territories.
64. Towards the protection of public and private space in a digital and Ambient Intelligence environment", Institute for Prospective Technological Studies, 2007, p. 17.Daskala, p. 2.
65. Paul De Hert and Serge Gutwirth."Data protection in the case law of Strasbourg and Luxemburg: constitutionalisation in action" Reinventing Data Protection?. Ed.
66. GUTWIRTH S., Y. POULLET, P. DE HERT, J. NOUWT & C. DE TERWANGNE (eds). Springer, 2009.e44, p. 3. Available at: http://works.bepress.com/serge- gutwirth/, accessed 23 February 2013.
67. DRAFT REPORT on the proposal, p. 213.