WEEK 4 TECHNOLOGY LAW NOTES - PRIVACY AND DATA PROTECTION IN THE
INFORMATION SOCIETY
Differences between privacy and data protection
Personal data are an important part of privacy but there are not everything.
For many jurisdictions, such as the US, there is no distinction between the two rights. For this
reason, in certain situations, the court needs to be inventive in order to create a legal framework
in which they would say that the right to privacy is being violated.
- Right to privacy: You have the right and you do not interfere unless you are in a certain
situation => You can keep information to yourself in your private sphere and there would
be only interference that is needed in specific cases (right to not interfere).
- Right to Data Protection: You have the right and data that can be processed but certain
principles should be followed. (right to yes process following certain criteria).
IND ethnically profiled business owners for years:
The Dutch Immigration and Naturalization Service (IND) recorded the ethnicities of thousands of
company directors under the assumption that those with a non-Western background would be
more likely to commit immigration fraud when bringing in employees, NRC reports. Their
companies would need to be audited more often, the IND reasoned.
IND for many years has been processing data on the ethnicity of directors and companies
because people that come from a different country might be willing more to violate rules on
migration. Therefore, these guys should have more control in their companies.
Is this a violation of the right to privacy? Is this a violation of the right to data protection? Is this a
violation of both?
They have a right to have the data, but do they have a right to process this data for these further
purposes?
- There is no violation of privacy because there is a law that requires us to register the
admisity when we go to the emigrational authorities because it is linked to all the other
data that the authorities need in order to do a background check to allow us to have a
resident permanent in order to lawfully reside in the country. There is no interference
with our private life as such, there are no common to our home, there are no listening to
our conversations, It is just information that by law they have the right to have.
Nevertheless, this information is our personal data, and the way in which this data is
being processed should follow certain criteria, and the purposes for which they process
this data should also follow certain criteria in order to avoid that those situations (like
acts of discrimination) do not happen.
- There is an interference by the state. The State is collecting the data on the basis of the
law, the data are needed to be collected but the data are being processed further and
people are going to check the companies, nobody is going to the home of the director of
the company but at the company and making more checks. This makes it difficult to say
that there is a violation of privacy because we are not within the private sphere (the
company is not one’s home as such).
- Following the principle of data protection, it would be easier and more straightforward for
the courts to establish a violation.
, + In this case, there is a lack of transparency and a lack of fairness in processing
those data.
+ Violation of the principle of purpose limitation: If IND collects our data for the
purpose of issuing resident permits, they can no then process this data in order
to introduce extra checks for the ones of us that have a company because we
might violate the law more.
The right to Privacy
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail
— its roof may shake — the wind may blow through it — the storm may enter — the rain may
enter — but the King of England cannot enter — all his force dares not cross the threshold of
the ruined tenement!” : Not even the King of England can enter one’s home.
- William Pitt, First Earl of Chatham 1763.
It has been recognized earlier than the right to data protection.
Originally, it was linked with one’s private home that was what is was considered to be the
private sphere of an individual.
The right to privacy is recognized all around the world but not always following the same
standards.
Amendment IV to US Constitution
Search and Seizure
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
- In the US: The fourth Amendment to the Constitution: The right to privacy shall not be
violated, but if we would compare it to the right to freedom of expression, the right to
privacy is not an absolute right, it may be the possibility to interfere in the presence of a
probable cause supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
The right to Privacy in Europe
Article 8 ECHR: Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his
correspondence: Establishment of the right to private life.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others: Exceptions to the
right (it is not an absolute right).
- Privacy (private and family life, home, correspondence)
