GMW: The fortress of privacy as further protected bulwark

26 Mar 2014 | GMW Lawyers

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ACCESS_mark _smallBy Arthur de Groot
First published in ACCESS Spring 2014 e-zine



What ever happened to privacy? New technologies gather, store and share information as never before. And we, ourselves, happily take part in gathering, storing and sharing information.


Through indifference or the desire for attention, even though we must all know just how important privacy is to modern life and at the same time just how endangered privacy has become. It is a compelling reminder that to defend privacy is to defend democracy and the good life. Liberty and the freedom of thought depend on privacy. To protect these fundamental rights, the EU called for a comprehensive data protection scheme in the EU and the revision of the Framework Decision with the proposal COM (2012) 11 final.


The EU states that building trust in the online environment is key to economic development. It also notes in the proposed General Data Protection Regulation that technology has transformed both the economy and social life as rapid technological developments have brought new challenges for the protection of personal data. The scale of data sharing and collecting has increased dramatically. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities.


A legal basis for (further) protection can be found in Article 8 of the EU Charter and Article 16 TFEU as introduced by the Lisbon Treaty and in Article 8 of the ECHR. As underlined by the EU Court of Justice in a Judgment of 9 November 2010 (Volker und Markus Schecke and Eifert [2010] ECR I-0000), the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society. Data protection is closely linked to respect for private and family life protected by Article 7 of the Charter.


Other potentially affected fundamental rights enshrined in the Charter are the following:

  • Freedom of expression (Article 11 of the Charter); freedom to conduct a business (Article 16)
  • The right to property and in particular the protection of intellectual property (Article 17(2))
  • The prohibition of any discrimination amongst others on grounds such as race, ethnic origin,genetic features, religion or belief, political opinion or any other opinion, disability or sexual orientation (Article 21)
  • the rights of the child (Article 24)
  • the right to a high level of human health care (Article 35); the right of access to documents (Article 42)
  • the right to an effective remedy and a fair trial (Article 47).


The proposed EU legal framework shields the temptation to constantly expand gathering storing and sharing information. And rightly so, as privacy like freedom, is not a means to an end but rather an end in itself.

GMW Advocaten
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