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

Author:Camelia Florentina Stoica - Marieta Safta
Position:Law Department, Bucharest University of Economic Studies - Faculty of Law,'Titu Maiorescu' University , Bucharest
Pages:88-105
SUMMARY

The legal regime of the right to the protection of personal data is of particular concern in the context of the technological developments that have as a consequence the increased collection and exchange of such data. Information technology and its development constitute forms of evolution of society, but this evolution must take place within the limits of and with respect for fundamental rights... (see full summary)

 
FREE EXCERPT
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 of personal data is of particu lar
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 t ime
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.
Keywords: 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
89
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.

To continue reading

REQUEST YOUR TRIAL