Data protection for the digital age: comprehensive effects of the evolving law of accountability

• Author: Nina Gumzej
• Position: Faculty of Law, University of Zagreb, Croatia
• Pages: 82-108

Data protection for the digital age: comprehensive effects

of the evolving law of accountability

Senior assistant – lecturer Ph.D. Nina GUMZEJ

1

Abstract

The law of per sonal da ta protection has for year s been la gging behind

technology, which is evolving propulsively and with high speed. A number of new

challenges a rising from the post-modern digital age have been identified for rights and

freedoms of individuals with respect to pr ocessing of their per sonal da ta and thus a need

for adapting the relevant legal-regulator y regime a nd ensuring a workable and

systematic data protection system for the third millennium. After examination of the

current legal fra mework and supporting systems at the level of European Union law, this

paper focuses on recently proposed r eforms. Pr oposed new EU legal-r egulatory regime

towards a potent da ta protection ecosystem i s strongly supported by stricter

accountability of those who ar e responsible for personal data . As one of the core legal

principles suppor ting the new regime, a ccountability denotes, in a nutshell, a number of

legally enforceable duties to implement a nd verify measur es and procedures that can

ensure opera tive and demonstrable data protection compliance. Selected highlights of the

proposed accountability measures are therefore examined in this paper and arguments

provided for a shift towards or ganizational data protection manage ment and governance

alrea dy today.

Keywords: right to persona l data protection, a ccountability, compliance, data contr oller,

digital age, P roposal for a EU General Da ta Protection Regulation

JEL Classification: K20

Introduction

The need and means to ensure special protection of human rights with

respect to processing of personal data pertain to the development of informatics

technology in the course of the 1960s. A transition towards automated processing

of information with the assistance of computers enabled a significant increase in

speed, reliability and capacity of processing and storage of information, and with

the development of computer networks provided for their exchange and

unhindered transmission. In such circumstances, especially taking into account

the social context of initiated globalization and t he need to ensure free flows of

information, special protection of personal data started to become recognized as a

prerequisite for continued unconstrained enjoyment of guaranteed human rights

and freedoms in the area of information and communications privacy. At the

same time this resulted from societal reactions to the growing abuse starting to

take place with respect to personal data stored in digital databases in the public

sector and followed by the private sector. In these circumstances, attempts to

eliminate risks or at least bring them under control followed with the

1 Nina Gumzej, Faculty of Law, University of Zagreb, Croatia, nina.gumzej@pravo.hr

Juridical Tribune Volume 2, Issue 2, December 2012

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establishment and enforcement of special rules, which established inter a lia the

conditions for collection, processing and use of personal data as well as sanctions

in cases of abuse. These rules also introduced a number of obligations for those

who collect and further process personal data and at the sa me time prescribed

rights in relation to this for relevant individuals, i.e., data subjects.

With the ensuing development towards the global information society

electronic communications became essential, and ever more so in light of

evolution of digital networks and a myriad of innovative new services to be

provided with the use of information-communication systems. Together with the

digitalization of networks and services and the availability of computers and

other terminal equipment, modern technology has targeted evolution towards

ultra-speed networks and the growingly advanced convergence of different

electronic communications devices and services, intended for widespread use. In

the post-modern digital age individuals are growingly communicating online and

carrying out their day-to-day activities online and it could be said that networked

presence is becoming vital for their ability to satisfy various needs, whether for

purely personal, social and entertainment purposes, or for business purposes.

Digital uptake trends are complemented by increasingly free or at least

economically viable solutions offering virtual data storage and other online data

processing services, such as cloud computing. At the same time, intensified and

more complex forms of processing personal data online further accentuate the

problem of managing control over them in borderless cyberspace. Furthermore,

with the aid of technology digital presence of individuals and their activities and

dispositions are not difficult to trace, and processing massive sets of data relating

to them is enabled in a growingly sophisticated manner. In addition to this

emphasis in the highly competitive market economy is increasingly placed on

tailor-made services and products, i.e., personalization on the basis of individual

preferences, which is enabled by tracking and profiling of networked individuals,

so as to target their anticipated needs, habits and interests as accurately as

possible. Indeed, personal data have, as it is often said become a new commodity,

supported by evolving markets for such data, but at the same time it has become

clear that the digital economy depends also on confidence of the consumers that

their data will be processed lawsfully, and securely. Inevitably, the globally

networked communications environment produces significant risks for the

security of information systems and for personal data, with acts of cybercrime

amassing and further evolving along with the overall trend towards the digital

life. What cannot also be ignored is intensified surveillance over individuals on

account of the need to effectively fight serious criminal acts such as terrorism,

which also implies increased and more sophisticated monitoring of personal data,

as well as use thereof, including the data originally collected from the individual

to be used only for commercial purposes.

All the aforementioned issues bring to light the more progressive challenges in

the post-modern digital age for rights and freedoms of individuals with respect to