Data protection law - An Introduction
DATA PROTECTION LAW - AN INTRODUCTION
1. Privacy and privacy protection
1. Data protection is a type of privacy protection manifesting in special legal regulation. Data protection right ensures a person the right of disposal over all data in connection with his personality. This way it serves to sustain the protection of privacy in a world where the possibility of collecting, storing and conciliation of large pools of data is widely available. In this situation the significance of facts and data that were previously regarded irrelevant by legislation (regarded as not belonging to the scope of individual secrets) increases: earlier, due to the lack of highly developed data-processing technologies no threat was imposed by a situation in which these data became public and known to others, while today processing, conciliation and association of data or creating new data relying on the old ones might result in the infringement to the right of privacy. The underlying notion behind the codification of data protection law is the insufficiency of secrecy protection: within the new context protection should apply to all data: “data protection should be differentiated from the interpretation of privacy as intimacy.”1
Thus, the object of protection is new – personal data – its aim, however, is the same as it was for secrecy protection, similarly to the aim of other extra-legal tools for protecting privacy or intimacy. Before treating the issue of data protection as a specific right, it is necessary to define the goal and interest to be protected: what is protected under data protection right by data-processing regulations?
The aim of data protection law is the protection of privacy. The protection of personal data within the new circumstances can offer the protection of privacy. These statements are true, however, they say little about what privacy is and why it needs protection.
2. There are various definitions that have been proposed for “privacy”. According to Schoeman it has been regarded
Westin points out that “virtually all animals seek periods of individual seclusion or small-group intimacy. This is usually described as the tendency toward territoriality, in which an organism lays private claim to an area of land, water or air and defends it against intrusion by members of its own species.”4 Likewise, distance-setting mechanisms can be detected in the animal world; non-contact animals keep certain a distance between them, which has been called “personal distance”, while within species it is “social distance” can be measured between groups set off from each other. If the territory accessible to an individual shrinks below the critical level, aggression becomes more sadistic, and “disruption of social relationships through overlapping personal distances aggravates all forms of pathology within a group and causes the same diseases in animals that overcrowding does in man – high blood pressure, circulatory diseases, and heart disease.”5
Based on anthropological research Westin states the following on the appearance of privacy in human societies: “our contemporary norms of privacy are ‘modern’ and ‘advanced’ values largely absent from primitive societies of the past and present.”6 Westin differentiates between several aspects of privacy that are characteristics to all human beings living in a society. These are primarily norms concerning privacy on the individual level, the level of family/household and the larger community. According to the results presented by Westin privacy norms are established in each of these three areas, but they vary significantly. Westin regards as a special aspect of privacy “[t]he ways in which human beings perceive their situation when they are alone.” It is their fear of isolation that makes them think they are never alone, that spirits and supernatural powers are with them. Another, universal element is “curiosity and surveillance,” namely the tendency of individuals and society to invade the privacy of others. The phenomenon of curiosity for its own sake, according to Westin, is not restricted to man. A particular way of gaining information in order to satisfy curiosity, gossip, exists because “[p]eople want to know what others are doing, especially the great and powerful, partly as a means of gauging their own performances and desires and partly as a means of vicarious experience [...].” Apart from the type of curiosity invading privacy, every society is characterized by a universal process of surveillance as well: “Any social system that creates norms – as all human societies do – must have mechanisms for enforcing these norms. Since those who break the rules and taboos must be detected, every society has mechanisms of watching conduct, investigating transgressions, and determining ‘guilt’.”7 At this point a process starts moving from primitive to modern societies, which “increases both physical and psychological opportunities for privacy by individuals and family units.” Regarding their significance in this process, the author points out the roles played by the anonymity of city life, mobility in work and residence, and the weakening of religious authority over individuals, by which he also stresses the tendency that alienation and lack of relations, together with bureaucracy, might lead to total control, justifying the Orwellian anti-utopia.
3. All societies have, therefore, norms of privacy, either legal or extra-legal: in Westin’s broad definition rules governing the concealment of the naked body as well as norms setting the boundaries of a family-household all belong here. He also mentions that there is more privacy for an individual in a nuclear household than in an extended one,8 while the formation of the nuclear household is a bridge towards the recognition of an individual’s privacy.9 Initially, the guaranty for autonomy has been property. “Parallel to the unfolding of capitalism proprietary right functions increasingly as the guarantee for autonomous action."10 Protection of honor appears already in classical Roman Law with the extension of the injuria by the law of the XII tables,11 and after its history bridging the Middle Ages, it remains a guaranty for ensuring the right of name and the protection of portrait right in Swiss law,12 while in the United States it is assimilated by privacy-protection.13
With the establishment of general personality right protection14 the protection of "secrecy sphere" is included in European laws,15 while in the United Stated the right to privacy first becomes a right underlying the protection of portrait rights replacing its interpretation as proprietary right, and later it becomes the framework for personal right protection, corresponding to the European idea of "general personality right."16
Warren and Brandeis in their famous article published in 1890 connect the necessity of the recognition of the right to privacy in common law with the effects of the new inventions of the age and the spreading of "business methods" unknown up to that point: an example for the former is the contemporary development of photography, while for the latter the growing impact of press – first of all yellow press. “Instantaneous photographs and newspaper enterprises have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the housetops.’”17 According to Warren and Brandeis newspapers invade privacy in an “evil” way, “[g]ossip is no longer the resource of the idle and the vicious, but has become a trade, which is pursued with industry as well as effrontery.”18 Gossip supply creates its demand, which “results in a lowering of social standards and of morality.”19
The other change is the significant development in photography technology, which makes it possible to take a picture of someone against his or her will – earlier one had to sit still for a portrait. This is stressed in the legal argument of Warren and Brandeis as well, since earlier if one would be “sitting” for the portrait, “the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait.” In the new situation, however, protection must be provided by a more stable legal background. After an overview of the practice of common law courts of justice, Warren and Brandeis come to the conclusion that the rights protected “are not rights arising from contract or from special trust, but are rights as against the world” (in other words they are absolute rights), but “the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual use.” According to Warren and Brandeis the right solution is a new interpretation of the “right to privacy”, a right that has already been acknowledged by judges. In common law this right was used earlier by judges when judging the publicizing of "thoughts, feelings and emotions trough writing or arts" in diaries, letters and similar media,20 but according to the authors’ opinion, this is only one element of the right, “the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to the personal relation, domestic or otherwise.”21
4. Warren and Brandeis have thus supported the need for the acknowledgement of the “right to privacy” with the change in the structure of publicity22 and the appearance of new technologies of the age. The protection of the individual gained a new background replacing proprietary rights: privacy means the protection not only of privacy, but the protection of autonomy in its wide sense, including not only the protection of proprietary autonomy. During the history of privacy its meaning kept widening, it has reached the right of general freedom of action,23 while according to Sólyom it is characterized by "alarming generality," "magniloquence" and "philosophic imprecision."24 Its appearance, however, is an important milestone in the development of personality rights: the development which is characterized “primarily by the detachment of protection from ownership."25 The protection of name, portrait and sound recording is acknowledged as an answer to the challenges of technology development,26 and general personality right is incorporated into law – first in Switzerland.27
5. The protection of an individual's "secrecy sphere" appears within the scope of general personality right, and is recognized partly within its frameworks. As Elemér Balás P. puts it, "the point in secrecy sphere is that the importance of personality is so predominant concerning certain facts that, from a legal point of view, these facts and their embodiments do not count as objects of the external world, but have to be understood as functions of personality. The formation of secrecy sphere is the manifestation of the life process of a personality via his will. Certain facts belonging to the outer world are such that, from the personality's point of view, they cannot be regarded as parts or as tools of the personality’s life process.”28 Protection, however, at this point of its history applied merely to secrecy sphere.
6. General personality right, after a temporary decline during the Second World War, became the focus of legal thinking again.29 Data protection is born with the first generation data protection laws, which gave a response to the development of computer technology and the appearance of the possibility of creating mass databases and matching of data: although still indirect, the legal protection of the facts (data) of an individual outside the sphere of secrecy protection appears. As a next step – based on the provision of the Constitution (Grundgesetz) declaring general personality rights – the German constitutional court formulates the right of informational self-determination (informational autonomy). The new right ensures right of disposal over all data that can be associated with a person (no matter whether the data are part of the secrecy sphere or not).