Abstract
Current trends in Open and Big Data have led certain scholars to suggest the idea of expanding the notion of the “data subject” to include the protection of data groups. Nothing precludes this expansion, however, there is a question as to the type of supra-individual right groups can be given, i.e. whether data group rights should be conceived of as rights of the group qua group or, alternatively, as complementary to the protection and enforcement of individual rights. The latter has materialized with the protection of intimate associations of large civic or business membership organizations in US law (corporate rights), and also vis-à-vis from the legal safeguards enshrined in Articles 7 and 8 of the EU Charter of Fundamental Rights (collective/procedural rights). This contrast entails a further distinction between the fields of privacy and data protection as in connection with the different kinds of interests, or goods, the legal systems are aiming to protect. By examining certain specific problems affecting current data protection, referred to here collectively as “data fetishism,” the goal is to offer a normative standpoint upon which sides can be taken in today’s debate as to any new level of data protection.
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Notes
- 1.
See the ruling of the EU Court of Justice issued 8 April 2014 (C-293/12 and 594/12), and the claims by certain Austrian and Irish organizations of being victims of a violation of their rights under Articles 7 and 8 of the Charter of Fundamental Rights. We return to this below in Sect. 9.4.
- 2.
See above note 1 in Sect. 9.3.
- 3.
It may be argued that once search engines are deemed data controllers, as the CoJ did in C-131/12, §§ 33–34, Google and any other search engine for that matter, should not be considered as a third party. Rather, ISP obligations would be those typically associated with the one-to-one legal interactions mentioned above in Sect. 9.4. Yet, in previous rulings, e.g. Google vs Louis Vuitton from 23 March 2010, it is noteworthy that the opinion of the Court was different, in that ISP obligations depended on “the actual terms in which the service is supplied” and “whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive” (§ 114 of the decision). Admittedly, it would be interesting to examine why the CoJ Justices changed their mind. For the sake of concision when dealing with group rights as a new level of data protection, we will skip this level of analysis here.
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Pagallo, U. (2017). The Group, the Private, and the Individual: A New Level of Data Protection?. In: Taylor, L., Floridi, L., van der Sloot, B. (eds) Group Privacy. Philosophical Studies Series, vol 126. Springer, Cham. https://doi.org/10.1007/978-3-319-46608-8_9
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