Theoretical and practical issues relating to the right to the protection of personal data

• Author: Camelia Florentina Stoica/Marieta Safta
• Position: Professor/Lecturer
• Pages: 88-105

Theoretical and practical issues relating to the right

to the protection of personal data

Professor Camelia Florentina STOICA

1

Lecturer Marieta SAFTA

2

Abstrac t

The legal regime of the right to the prote ction o f person al data is of p articular

concern in t he contex t of the technolo gical d evelopments that h ave as a consequ ence the

increa sed c ollection a nd exchan ge of such da ta. Information tec hnology an d its

develo pment c onstitute forms o f e volution of society, but this e volution must tak e plac e

withi n the l imits of and with respect for fundamenta l rights as regulat ed by States’

Consti tutions and the relev ant interna tional do cuments. Having rega rd to the dyn amics of

these ph enomena, timely and co ntinuou s a daptatio n of t he leg islation is undoub tedly

difficult. As a resul t, an impo rtant rol e in th e definiti on and guarant ee of the right to th e

protec tion of person al data an d the reconci liation wi th other funda mental rights that a lso

need to be protected is playe d by n ational courts ( particula rly the constit utio nal courts)

and in ternation al courts, oblig ed to carry out an evol utionary an d at the same time

consist ent a pproach in this matter. The judges’ d ialogue is thus th e key to ensuri ng an

effective p rotection o f fundamenta l rights that need to be recon ciled.

Keyword s: right to the protec tion of personal data, right to information, review of

consti tutiona lity, proporti onality

JEL Cla ssification: K23, K33

1. Introduction

The protection of personal data is undoubtedly a topical subject, both

nationally and internationally. In the European Union there is, as already pointed

out, a genuine constitutional concern with regard to the protection of personal

data.

3

As of 1 December 2009, the right to protection of personal data has been a

fundamental right at EU level and it has been enshrined as such in Article 8 of the

Charter of Fundamental Rights of the European Union. The European regulatory

framework for the protection of natural persons during the processing of personal

data is, however, much more extensive, including the Charter and the Treaty on

European Union, the Treaty on the Functioning of the EU, the rules of secondary

1

Camelia Florentina Stoica - Law Department, Bucharest University of Economic Studies,

camelia.st oica@cig.ase.ro .

2

Marieta Safta - Faculty of Law,“Titu M aiorescu” University, Bucharest, marietasafta@yahoo.com

3

D. M . ȘANDRU, The legal regime of p rotection of p ersonal data is in the process of reforming,

“Revista română de drept al afacerilor” no. 3/2015.

Juridical Tribune Volume 5, Issue 2, December 2015

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law, i.e. the directives and the decisions of the institutions of the Union, completed

with the judgments of the Court of Justice of the European Union, soft law rules

and codes of conduct, both in the Member States and at Union level.

4

Numerous studies and a rich case-law of national and international courts

are shaping the legal regime of the right to the protection of personal data,

particularly important in the context of technological developments resulting in an

increased collection and exchange of such data. Of course, information technology

and its development constitute forms of evolution of society, but this evolution

should take place with respect for fundamental rights as regulated by States’

constitutions and international documents. In this regard, we think that it is

important to analyse the right to the protection of personal data in the light of other

fundamental rights, such as the fundamental right to privacy, from the scope of

which the secrecy of correspondence, the freedom of conscience, the freedom of

expression, the right to information, the inviolability of the home, the right to life

and to physical and psychological integrity, personal liberty have emerged.

This study presents some landmarks decisions that can reveal the content

and limits of the right to the protection of personal data in relation to other

fundamental rights, as identified by national constitutional courts, the European

Court of Human Rights and the Court of Justice of the European Union. We

consider this useful and we agree with the distinction drawn in the specialised

literature

5

between the regulatory framework of the Council of Europe, where, in

view of the enshrinement in the Convention for the protection of human rights and

fundamental freedoms and based on the practice of the European Court of Human

Rights, the right to the protection of personal data is not an autonomous right, and

it is rather regarded as a subtype of the right to private and family life (right to

information privacy) and, at the same time, an objective legal guarantee of that

fundamental right within the European Union, where the right to the protection of

personal data autonomously co-exists as a fundamental right with the right to

private and family life, based on the Charter of Fundamental Rights of the

European Union and within the regulatory framework of the Member States of the

European Union, where the right to the protection of personal data is either

specifically enshrined in national constitutions (Austria, Slovenia, Poland), or

received through the implementation of European Union law, with the exception of

States which have expressly invoked the derogations from the provisions of the

Charter (Poland and the United Kingdom). We would add that this distinction may

be applied, mutatis mutandis, also internationally, not only at European level,

having regard to the provisions of Article 12 of the Universal Declaration of

Human Rights, to the provisions of other international instruments, and to the

modality in which these rights are enshrined in national constitutions.

4

S. ȘANDRU , The legal nature of the right to the p rotection of personal data in the European

Union, in RRDE no. 2/2011.

5

Ibid.