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Summary Privacy and Data Protection Lecture 2
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Law and Technology master, course Privacy and Data Protection 2016/2017 Lecture 2
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Lecture 2The data protection definition is to be found in art. 8 of the Convention
The definition of privacy is to be found in case law. In Europe, a lot is privacy and privacy
falls under the umbrella of data protection.
Balancing is the beauty of academic legal. Good balancing - Bad balancing is having two
rights conflict, but giving full preferencing to one. The balancing should never erode the harm
of the respective values. If you balance, you can give priority but you can never kill one of
the two.
Case Vereinigung bildender Künstler v. Austria (p.30) had used public figures and put them
in sexual positions. They achieved a ban in Austria, but at European level they lost. The
Court said that there is an exception for public figures and that the collages and drawings
were not realistic and thus they gave priority of the freedom of artistic expression. The Court,
twenty years later, reversed its case law. If you want to give freedom of artistic expression,
you should also make it gender friendly. There is a lot of gender criticism on law, think of
females that are always judged by their looks.
The case of Telefonica/Promusica is very important and about downloading illegally.
Followed by Europe being tough on downloading, they need the telecom providers to see
who is downloading. You can’t enforce your IPrights as you need these telecomproviders
information. Can holders of artistic interest oblige providers to collaborate in identifying
downloaders? There is a rule protecting these providers, so they can simply provide services
as if you put too much police on them they would have to grow. The economic interests of
providers are opposed to the economic interests of people that have an artistic influence. All
these things came together, including data protection issues. Although a provider cannot
know directly through an IP-address who the person is, it is personal data, as it can be
traced towards a person. Usually when we have this address we know who it is, but not
always. Important case by Google and Microsoft because they would have loved not to apply
data protection to IP-addresses, but Europe said that it is personal data. The Court found a
balance between the economic interest of the providers and those of the holders of artistic
interest as it invited the lawmakers to do the balancing, recalling that these different
fundamental values all need to be reconciled. Downloading is illegal most of the times, but
legal framework is under policy pressures of the Hollywood and others being altered, so
getting caught is hard for now though one day it will be very easy.
Luxembourg is asked to give an interpretation, it doesn’t have to solve the case whereas
Strasbourg always has to solve the case and give a judgment. Carolina Monaco lost, the
Formula I person lost his case, they are easy to distinguish. This is about the balancing, not
about who is right or wrong.
Chapter 2 - basics of data protection
What is personal data? The dominant interpretation is that it is about natural persons and
living beings. Only living beings have the right to personal data protection. Strasbourg also
protects professional life (Amman case), so it includes everyone, also legal persons. Legal
entities have successfully used ‘privacy, home and correspondence’ of art. 8 (1) of the
Convention to go to Strasbourg. Some legal systems don’t require a search warrant if you do
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