Seminar 2 - Data Protection as a human right

Question 1

What is data protections ultimately about protecting?

Answer 1

Data protection is ultimately about protection of natural persons privacy

Question 2

Where is the protection of natural persons in relation to the processing of personal data enshrined in? (GDPR)

Answer 2

GDPR art. 1(2)

Question 3

Is data protection an absolute right?

Answer 3

Like other human rights, data protection is not an absolute right and may be subject to different criteria that can justify interference in certain cases.

Question 4

Why is there a need to distinguish between privacy and data proctection?(Name a case to refer to)

Answer 4

● Differ in their formulation
○ Private life: A general prohibition, which can be justified
○ Personal data protection: A modern right, where processing must comply with the essential components of data protection

○ Rundfunk Case - information about public employees’ salaries were not private, however, under a data protection analysis, it would have been a different / sufficient analysis.

Question 5

Is the Protection of personal data an absolute right?

Answer 5

No, the right to data protection is not an absolute right, but must be balanced against other fundamental rights.

Question 6

Name the 4 limitations and interference on the right to personal data protection according to EU Charter?

Answer 6

1) provided for by law;
2) respect the essence of the right to data protection;
3) subject to the principle of proportionality, are necessary; and
4) meet objectives of general interest

Question 7

Name other rights data protection interacts with?

Answer 7

Freedom of expression and the right to receive and impart information

Question 8

What parameters do we need to take into account when balancing data protection with Freedom of expression?

Answer 8

● (i) contribution to a debate of general interest
● (ii) how well-known is the person concerned and what is the subject of the report
● (iii) prior conduct of the person concerned
● (iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken
● (v) content, form and consequences of the publication; and
● (vi) severity of the sanction imposed.

Question 9

What is the essence of Christopher Docksey “The four fundamental rights”?

Answer 9

How regulators and courts have to find the right balance between four chosen fundamental rights (two “pairs” of rights:

1. Freedom of expression & the right to public access to documents
2. Privacy vs. Protection of personal data

Question 10

Name a case that illustrates data protection balanced against other rights?

Answer 10

Google Spain: the right to data protection is not absolute, but must be balanced with other rights, in particular the interest of the general public in having access to certain information - must look at the nature of the information.

Question 11

What was Google’s perspective in the “Google Spain”- case?

Answer 11

■ Google claimed that they are not a controller and shouldn’t be treated as such. They are a search engine.
■ GDPR doesn’t apply as it’s Google in California which means it doesn’t apply (geography).

Question 12

Where is the relationship between GDPR and freedom of expression governed in the GDPR?

Answer 12

Article 85 of the General Data Protection Regulation.

Question 13

Name the 3 limitations and interference on the right to personal data protection according ECHR?

Answer 13

1) in accordance with the law,
2) pursuing a legitimate aim and
3) necessary in a democratic society.

Question 14

Name examples of Objective public interest from the 4 limitations to interference to personal data protection?

Answer 14

Examples such as (From TEU art. 3):

- the promotion of peace and of the well-being of its peoples, social justice and protection

Question 15

Where is Freedom of Expression found in the EU Charter?

Answer 15

Art. 11 of the Charter.

Question 16

Can the right of access to documents overrule the right to data protection.

Answer 16

No, The right of access to documents cannot automatically overrule the right to data protection.

Question 17

We have a principle where we shouldn’t connect more data than necessary - what is that principle called?

Answer 17

Minimizing principle.

Question 18

What is omnibus regulation?

Answer 18

Applies to all sectors etc. (and not sectoral regulation)

Question 19

Is the GDPR Regulation omnibus - and why?

Answer 19

Yes, Applies to all sectors.

Question 20

What is the Relationship between the Charter and the ECHR when it comes to respect for private life?

Answer 20

In their case law, the CJEU and the ECtHR often refer to each other’s judgments, as part of the constant dialogue between the two courts to seek a harmonious interpretation of data protection rules.

Question 21

What does Article 85 of the General Data Protection Regulation explain?

Answer 21

Member States shall reconcile the right to personal data protection with the right to freedom of expression and information.

Question 22

Whether, and to which extent, the denial of access to information constitutes an interference with an applicant’s freedom of expression has to be assessed in each individual case and in light of its particular circumstances, including what?

Answer 22

(i) the purpose of the information request;
(ii) the nature of the information sought;
(iii) the role of the applicant; and
(iv) whether the information was ready and available.

Question 23

Interaction with other rights and legitimate interests from Charter and ECHR, name them?

Answer 23

1. Freedom of expression
2. Freedom of religion and belief
3. Freedom of the arts and sciences
4. Protection of intellectual property
5. The right to access official documents

Question 24

What does Docksey point when EU courts have to make two great steps? And what are they?

Answer 24

1) First, to recognize that each right is different and must be treated individually rather than simply run together, as in the case of privacy and data protection,
2) second, to interpret and apply freedom of expression, privacy and data protection as fully complementary rights, not necessarily in conflict