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3 Privacy and Data Protection as Constitutional Values That Matter, Also on the Internet

3 Privacy and Data Protection as Constitutional Values That Matter, Also on the Internet

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2.3  Privacy and Data Protection as Constitutional Values That Matter, Also…



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data, recognising that big data may significantly improve the quality of government

action in a wide range of areas.11

Big data is a much wider concept than personal data since the former also

includes large data sets that are not related to identified or identifiable natural persons.12 One way to fully benefit from big data, however, is precisely through the fact

that personal data, too, can be used for broad purposes. This, in turn, is difficult to

align with purpose limitation, which is a basic principle of data protection.13 This

wide use of personal data is said to have added-value for our democracies. Notions

such as open data and net neutrality are relevant in this context, as is an open internet that is not regionally fragmented.14 The protection of the physical security of

individuals may require the use of large amounts of personal information.15

These examples illustrate changing views on the exercising of the rights to privacy and data protection and on intrusions of these rights. Some intrusions are perceived as annoying, while others are serious. To make things even more complicated,

the perception of the nature of an intrusion is based, to a certain extent, on subjective

ideas: people value the seriousness of privacy breaches16 in divergent ways, as evidenced by the massive use of personal data in business models designed to capture

value from personal data for behavioural targeting of consumers.17 Is it a serious

breach of privacy that people’s data are subsequently being used for targeted advertising without their knowledge, or is this just annoying?

This being said, the starting point of this book is that our democratic society,

which is subject to the rule of law, can only function if individuals have a certain

degree of autonomy and privacy. The obvious reference in literature in support of

this starting point is George Orwell’s 1984. A more recent literary witness is The

Circle by Dave Eggers.18 The main argument in this book is that all individuals, not

only those involved in doing bad things, have something to hide, simply because

people are entitled to do things in a private sphere that they do not want to make

11

 Examples of societal benefits can be found in Big Data: A Revolution That Will Transform How

We Live, Work, and Think by Viktor Mayer-Schönberger and Kenneth Cukier (Eamon Dolan/

Houghton Mifflin Harcourt, 2013). See also: “Big Data: Seizing Opportunities, Preserving Values”,

Executive Office of the President (Podesta Report), May 2014.

12

 Definition of personal data in Article 2(a) of Directive 95/46. On big data, see Chap. 3.

13

 This is laid down in Article 8 Charter, which states that personal data must be processed for

specified purposes.

14

 This is an important argument in the debate surrounding Case C-131/12, Google Spain and

Google Inc., where critics point to the fact that the ruling may possibly lead to censorship of the

internet if it obliges search engines to remove certain links.

15

 A recurring issue, as illustrated by the legislative reactions to 9/11 and Charlie Hebdo and also

by the Snowden revelations (see mainly Chap. 3).

16

 The recurring question in debates on privacy breaches is “Is this really a problem?” or, in my

native Dutch tongue, “Wat is hier erg aan?”.

17

 See: European Data Protection Supervisor, Preliminary Opinion of 26 March 2014 on “Privacy

and competitiveness in the age of big data: The interplay between data protection, competition law

and consumer protection in the Digital Economy”, at Section 2.

18

 Dave Eggers, The Circle, McSweeney’s, 2013.



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2  Privacy and Data Protection as Values of the EU That Matter, Also…



public. And the fact that many – though not all – people are prepared to share large

parts of their private sphere online, for instance on social media, does not alter this.

In a TED Talk (2014), Glenn Greenwald19 convincingly argued in support of the

importance of privacy and data protection in an information society generating the

potential for mass surveillance of every individual. He refuted statements by leaders

of big internet companies that you had better not do things if you do not want them

to become public20 or that privacy is no longer the social norm.21 An example of the

latter is the statement by Mark Zuckerberg, founder and CEO of Facebook, that

“The rise of social networking online means that people no longer have an expectation of privacy.”22



2.3.1  T

 wo Elements Stand Out: There Are No Good or Bad

People, and Monitoring Changes Behaviour

Two elements stand out in Greenwald’s reasoning in the context of this book: there

are no good or bad people, and monitoring changes behaviour. Firstly he states that

one cannot divide the world into good people and bad people, with the first group

consisting of people who have nothing to fear from monitoring because they have

done nothing wrong, and the second group being the justifiable target of monitoring,

precisely because they have done something wrong, or can reasonably be suspected

or expected to do so. Secondly he explains that constant monitoring may indeed

change behaviour and lead to a society where people become conformist and compliant. Human shame or embarrassment could be a reason for adapting behaviour

that is legal and not harmful to others, but is not mainstream. For a democratic

society it is important to respect non-mainstream behaviour or, more specifically,

behaviour by political and societal minorities.

This book does not claim that massive use of personal data, even without the

knowledge of the individuals concerned, by definition leads to unjustified interference of privacy or other fundamental values in a democratic society. It does claim,

however, that the arguments of Greenwald in favour of privacy and data protection

are convincing. The substantive increase in the use of massive amounts of data may

well affect individuals and democratic societies adversely, unless this use is accompanied by effective and legitimate rules to counterbalance the undesired effects.



19



 Glenn Greenwald, “Why privacy matters”, TED Talk October 2014, Interactive trans­cript ­available

on: http://www.ted.com/talks/glenn_greenwald_why_privacy_matters/transcript?language=en

20

 Statement attributed to Eric Schmidt, former CEO of Google.

21

 Statement attributed to Mark Zuckerberg, founder and CEO of Facebook.

22

 Guardian, 11 January 2010, available on: http://www.theguardian.com/technology/2010/jan/11/

facebook-privacy. See also: Stefan Kulk and Frederik J. Zuiderveen Borgesius, “Google Spain v.

González: Did the Court Forget About Freedom of Expression?”, European Journal of Risk

Regulation, 4 September 2014.



2.3  Privacy and Data Protection as Constitutional Values That Matter, Also…



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These undesired effects can be summarised as lack of control over information,

which hampers the autonomy of individuals, and full transparency of individuals

and their behaviour, which hampers their dignity.23 These effects do not alter the fact

that many individuals share large amounts of private information online on a voluntary basis. For these individuals, privacy may have a different or possibly less

important meaning, or may even no longer be the social norm.24 This does not mean,

however, that all individuals are no longer entitled to protection of a fundamental

right, even if only a minority of them care.

The Snowden revelations are an illustration of these effects on individuals and

society.25 Not only are people shocked by the fact that a foreign power is able to

infringe their fundamental rights on a massive scale, thus adding a genuinely new

dimension,26 but people also do not even know the scale and nature of what is really

happening, and nor do governments always know this. It has even been claimed that

some governments are kept unaware of surveillance activities involving their own

citizens.27

These effects are also the result of the evolving era of big data, implying a lack

of control over information by individuals and thus shifting the power to those who

hold large amounts of personal data, such as the big internet companies.

These effects are obviously not new. As will be explained below,28 technological

developments have led to the recognition of privacy and data protection as fundamental rights and to their inclusion in primary EU law. This book argues, however,

that it is the scale of intrusions into these fundamental rights that is new. And this

new scale of intrusions influences the protection that is required in a European

Union based on values and operating in an effective and legitimate manner.



23



 Autonomy and dignity are referred to in Sect. 2.8 of this chapter as the underlying values of

privacy and data protection.

24

 As implied by Mark Zuckerberg. See footnote 22.

25

 In this context, see, e.g.: Communication from the Commission to the European Parliament and

Council, “Rebuilding Trust in EU-US Data Flows”, COM(2013) 846 final. In its reaction, the

Article 29 Data Protection Working Party called the Snowden revelations a hard wake-up call for

many. See: Opinion 04/2014 on “Surveillance of electronic communications for intelligence and

national security purposes”, WP 215. In the same sense, see: “The Right to Privacy in the Digital

Age”, Report of the Office of the United Nations High Commissioner for Human Rights, 30 June

2014.

26

 Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA and the Surveillance State,

Metropolitan Books/Henry Holt (NY), 2014, at 5–6.

27

 European Parliament, Directorate-General for Internal Policies, Policy Department C, Citizens’

Rights and Constitutional Affairs, National programmes for mass surveillance of personal data in

EU Member States and their compatibility with EU law, October 2013, at 8.

28

 See Sects. 2.8 and 2.10 below.



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2  Privacy and Data Protection as Values of the EU That Matter, Also…



2.4  A

 mbitions of the EU in Promoting Democracy:

Democracy Requires a Free Internet, but Not

an Unprotected Internet

This section discusses the European Union’s ambitions in promoting democracy in

relation to privacy and data protection on the internet. Privacy and data protection

are essential in a democracy for two reasons. Firstly, a democratic society cannot

exist if individuals do not have the assurance of the full exercise of their fundamental rights under the rule of law. It is the respect for the rights of individuals that

distinguishes a democracy from a totalitarian state.29 Secondly, one of the main

objectives of the protection of fundamental rights is to guarantee the participation of

individuals in a democratic society under the rule of law. This is the essential nature

of the freedom of expression and information, enabling “expression to be given to

opinions which differ from those held at an official level”30 and of connected rights

recognised in most Western constitutions, such as the freedom of assembly and of

association.31

The rights to privacy and data protection also have a connection with participation in a democratic society since respect for privacy and data protection, thus preserving the autonomy of individuals, is also a prerequisite for exercising the freedom

of expression. If privacy is not respected, this will have a chilling effect on individuals’ participation in a democratic society.32 Hence, privacy and data protection are

not just fundamental rights of individuals, but are also essential for the functioning

of our democratic societies.



2.4.1  D

 emocracy as Guiding Principle in Relation

to the Internet

Democracy is a guiding principle in relation to the internet in that the latter must be

a sphere in which democracy flourishes. A free internet is seen as empowering individuals to share information in an unprecedented way, and hence as boosting

democracy.33 In its proposal for a regulation concerning the European single market

29



 E.g., Aharon Barak, Proportionality; Constitutional Rights and their limitations, (Cambridge

University Press, 2012); European Parliament, Directorate-General for Internal Policies, Policy

Department C, Citizens’ Rights and Constitutional Affairs, National programmes for mass surveillance of personal data in EU Member States and their compatibility with EU law, at 12 (referred to

in Chap. 3, Sect. 3.7 of this book)..

30

 C-340/00P, Commission v Cwik, EU:C:2001:701, at 22.

31

 Articles 11 and 12 Charter.

32

 As explained by Bruce Schneier, Data and Goliath, (W.W. Norton & Company, 2015), at 95–97.

The argument of the chilling effect is also often referred to in Europe.

33

 E.g., Center for Democracy and Technology, “Regardless of Frontiers: The International Right

to Freedom of Expression in the Digital Age”, Discussion Draft Version 0.5, April 2011.



2.4  Ambitions of the EU in Promoting Democracy: Democracy Requires a Free…



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for electronic communications, the Commission provides for a right to participate

on the internet, whereby “End-users shall be free to access and distribute information and content, run applications and use services of their choice via their internet

access service.”34

A free internet could also mean that whereas individuals are to a large extent

dependent on big internet players,35 they may require those players themselves to

act in a transparent way as a prerequisite for a free and democratic society.

The link between the internet and democracy is often made, by depicting the

internet as a space where the free flow of information is promoted, that protects

human rights and that fosters innovation,36 in short an environment where democratic values are fully respected. The European Commission even states that the

internet facilitates democratic progress worldwide.37

One of the justifications for restricting government intervention on the internet is

the fact that states may attempt to curb the global connectivity of their citizens by

censorship and other restrictions of free speech.38



2.4.2  A Free Internet Does Not Mean an Unprotected Internet

Democracy must flourish on the internet. This essentially means that governments

may set conditions where necessary, but must in principle abstain from intervention.

This is one of the reasons why the Commission has embraced the model of multi-­

stakeholder governance structures for the internet, with limited government participation. In certain situations, however, governments should also actively ensure that

democratic rights are respected, and this requires active government intervention.

Privacy and data protection must be guaranteed: Article 16 TFEU provides the

European Union with the mandate to do so.



34



 Proposal for a Regulation of the European Parliament and of the Council laying down measures

concerning the European single market for electronic communications and to achieve a Connected

Continent, and amending Directives 2002/20/EC, 2002/21/EC and 2002/22/EC and Regulations

(EC) No 1211/2009 and (EU) No 531/2012, COM (2013), 627 final.

35

 As will be explained in Chap. 3.

36

 Taken from Freedom Online Coalition (FOC), “Hague declaration”. See: http://www.minbuza.nl/

binaries/content/assets/minbuza/en/the_ministry/declaration-freedom-online-feb-2013.pdf, at 3.

37

 Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions Internet Policy and Governance

Europe’s role in shaping the future of Internet Governance, COM/2014/072 final, at 2.

38

 Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions, Internet Policy and

Governance – Europe’s role in shaping the future of Internet Governance, COM/2014/072 final, at

3. Examples include China and Russia. See, in Dutch: Adviesraad Internationale Vraagstukken

(AIV), Advies 92, “Het Internet: een wereldwijde vrije ruimte met begrensde staatsmacht”,

November 2014, at 62–63.



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