Privacy and Data Protection based on the GDPR. Leo Besemer

      Colophon

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      Foreword

      Chapter 1 of “Privacy and Data Protection based on the GDPR” describes how in 1890 the Boston lawyer and future U.S. Supreme Court Justice, Louis Brandeis, together with his partner Samuel Warren, published in the Harvard Law Review a classic article – “The Right to Privacy”. A key topical concern of Brandeis and Warren was the first introduction to consumer markets of portable and cheap cameras and their potential use by 19th century paparazzi to harm people’s confidentiality. In other words, the main issue which triggered their article was technological development resulting in abuse of the individual’s right to privacy – plus ça change …

      The right to privacy was included in the European Convention on Human Rights drafted in 1950. It created an essential human rights standard which is binding on the Council of Europe members. The consistency it introduced to Europe is highly important. For instance, when comparing privacy rights in Irish and English law, Article 40.3.1 of the Constitution of Ireland adopted by a vote of the people in 1937 provides that “the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”. The courts have held that one of these personal rights is the Irish citizen’s right to privacy.

      On the other hand, in Kaye v Robertson [1991] FSR 62, it was stated by Lord Justice Glidewell that “it is well known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy”. Both countries have subsequently incorporated the Convention rights – including the Article 8 right to privacy – into national legislation. And another vital point is that these are “human” rights – rights we all have by virtue of our common humanity and not because of our citizenships, or the jurisdictions in which we reside. Likewise, our right to the protection of our personal data under European Union law provides a shared standard for and across all Member States.

      Although there is significant overlap between our right to privacy and our right to protection of our personal data, they are not identical. This is often misunderstood – privacy and data protection are frequently thought to be 100% synonymous. But as Leo points out, they are separate and distinct rights under the Charter of Fundamental Rights of the European Union. Similarly, the Council of Europe has its Convention on Human Rights, separate from its more specific Convention 108+ for the protection of individuals with regard to the processing of personal data.

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