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Title: Data protection law: recent developments
Authors: Kasneci, Dede
Supervisore/Tutore: Hattenberger, Doris
Issue Date: 26-Apr-2010
Publisher: Università degli studi di Trieste
Privacy and data protection concern everyone and are issue of profound importance around the World. Privacy has been hailed as “an integral part of our humanity” the “hart of our liberty” and “the beginning of all freedoms” (Solove, 2008). Given its importance, privacy is recognized as a fundamental human right according to many International Instruments such as: the United Nations Universal Declaration of Human Rights of 1948 (Article 12), International Covenant on the Civil and Political Rights (Article 17) The European Convention of Human Rights of 1950 (Article 8), the Charter of Fundamental Rights of the European Union of 2007 (Article 8) and the Treaty of Lisbon of 2008 (Article 16 of the TFEU).
However, beyond this worldwide consensus about the importance of privacy and the need for its protection, there is difficulty to conceptualize the privacy. Privacy is a contested legal concept, with several understandings and more misunderstandings. Privacy is actually shorthand for a complex bundle of issues, ranging from dignity to discrimination, and rooted in our need to control what we tell others about ourselves.
The main difficulty to reach a satisfying conceptualization of the privacy is that there are some eternal privacy tensions, namely, the interests protected by privacy and data protection laws are inherently in conflict with other legitimate interests such as the freedom of speech, public security and the free flow of information. While, it is impossible to belong to a community and withhold all data, the collection and the processing of our data carry with it many risks and dangers. One such risk is that the data will be abused by those who access it, either by authorization or not. Data which was consensually provided for one purpose might be used against us in a different context.
Other privacy tensions are driven by technology which gave rise to the emergence of the data protection law: the falling cost of data storage and communication makes it easier for merchants and governments to collect more data on people and thus to become more efficient to violate the privacy. The development of the Computer technology in the 1960’s and 1970’s and the enormous potential of the digital revolution made the civil libertarians worry. The nightmare of all-seeing, all-knowing “Big Brother” of George Orwell’s “1984” did not belong anymore to the realm of the fiction, but was a reality. And as the enormous potential of the digital revolution became more apparent and together with it the dangers posed to privacy, so the calls for the specific measures to protect individuals became louder.
The data protection rules originally developed, at national level in the 1970s, as a response to the threats posed to the privacy by the technological developments of the 1960s and 1970s. It emerged as a new legal field, separate from the privacy law but dependent upon it.
The task of the personal data law is to provide a legal framework which is capable of reconciling the needs and interests of those who make use of personal data (data controllers or data processors) with those of persons to whom these data relate (data subjects).
Europe has proven to be the leader in protecting privacy and personal data of the individuals in the digital age. At the EU level, the first legal instrument in this field was Data Protection Directive, which was passed in 1995 to harmonize national data protection laws within the European Community, with the aim of protecting the fundamental rights and freedoms of individuals including their privacy and personal data.
After 15 years the question is whether the Data Protection Directive 95/46/EC fit the objectives for which it was adopted in 1995. The European Commission considers that the Directive 95/46/EC fulfils its original objectives and therefore does not need to be amended.
This thesis questions this static approach of the European Commission to the data protection regime and argues that the increasing pressure on privacy due to the development of privacy destroying technologies and the growing use of and demand for personal information by public and private sectors, requires quick legal answer and constant change of the data protection legislation.
The research carried out for this thesis shows that, over time the social and regulatory environment surrounding the creation, management and the use of personal data has evolved significantly since the adoption of the Directive 95/46/EC. The Directive is showing its age and is failing to meet the new challenges posed to privacy by factors such as the huge growth of personal information on line and the growing availability and ability of the new technologies to process, use and abuse personal information in many ways.
These factors have challenged the means and the methods used by Directive to protect personal data and have altered the environment for the implementation of the Directive. Thus, it is clear that the context in which the data protection Directive was created has been changed fundamentally and certain basic assumptions of the Directive have already been challenged in approach, in law and in practice. All these factors show that the Directive is out of touch to meet the technological, social and legal challenges of 21st century and therefore need to be reviewed and amended.
Ciclo di dottorato: XXI Ciclo
Keywords: privacydata protection lawdata subjectdata controller
Type: Doctoral
Language: en
Settore scientifico-disciplinare: IUS/14 DIRITTO DELL'UNIONE EUROPEA
NBN: urn:nbn:it:units-8955
Appears in Collections:Scienze giuridiche

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