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ClementLegrandFirstEssay 12 - 21 Feb 2017 - Main.ClementLegrand
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< | Under Review EU Regulating Privacy: What Is the Point? | >
> | EU Regulating Privacy: What Is the Point? | | | -- By ClementLegrand - 03 Nov 2016 | | |
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< | <The Usa and Europe have a slightly different approach to fundamental rights. Under European law, the States have an obligation to make sure that the fundamental rights are protected. This means that a European state can be sued for not preventing private parties from violating a human right. This creates some conflicts between different human rights, including the right of data protection and the freedom of tought, speech and information. THis is why the court in Costeja Gonzalez insisted on the fact that the data controller should balance the right of privacy of the user with the interest of the public to have access to the information. In the new article of the GDPR, it also excluded from the scope of the right to be forgotten, data processing where the controller has an overriding legitimate ground. This incorporates the right of freedom of thought, speech and information.
This kind of regulation also already exist in the USA. American companies are subject to several sectorial regulations which also create restriction on the use of PII and right for the users (e.g. HIPAA, FCRA, etc.). The main difference with the European Union is tha the "centralized" approach of the EU ensure that all sectors abide with the data protection rules. I think therefore that it is not a difference of conception of the freedom of speech, but rather a question of approach towards privacy. | >
> | <The Usa and Europe have a slightly different approach to fundamental rights. Under European law, the States have an obligation to make sure that the fundamental rights are protected. This means that a European state can be sued for not preventing private parties from violating a human right. This creates some conflicts between different human rights, including the right of data protection and the freedom of tought, speech and information. THis is why the court in Costeja Gonzalez insisted on the fact that the data controller should balance the right of privacy of the user with the interest of the public to have access to the information. In the new article of the GDPR, it also excluded from the scope of the right to be forgotten, data processing where the controller has an overriding legitimate ground. This incorporates the right of freedom of thought (which has no limit), speech and information (which have certain limits)and all the long established European case law in the field.
In the USA, it is argued that a such a regulation would violate the first amendment. But should all information be equally protected? Is there as much need in protecting the gathering of metadata as there is in protecting collection of information of public interest? The famous article of Warren and Brandeis, which introduced the notion of Privacy in the USA, argued for a "right to be let alone". The authors feared the new technology of handheld cameras. Today, the technology allows to gather much more data about anybody. I think that not granting autonomy to persons over their personal data because of the protection of the first amendment (applying indiscriminately to any kind of information) is not adapted to today's world. | | | |
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