Enforcement of the Right to Digital Privacy
Oreste Pollicino
SUMMARY: 1. Atoms, Bits, and Terrorism. - 2. Digital Rights Ireland. - 3. Google Spain.
- 4. Schrems. - 5. Tele2 Sverige. - 6. Conclusions.
Atoms, Bits, and Terrorism
How has the coming of the Internet affected the exercise and the judicial protection of privacy and data protection in the framework of the European Union (‘EU’)? To what extent does the protection of privacy and data protection in the digital environment change the fight against terrorism? Responding to these research questions would require taking into account at least one factor: the role of the European Court of Justice (‘ECJ’). Nowadays, the ECJ acts as a ‘playmaker’ in interpreting and solving issues deriving from interconnected legal regimes affecting the protection of fundamental rights. Its position and ability to dialogue are even more amplified in the digital age.
This is due to some peculiarities of the (digital) environment where, for example, the right to privacy and data protection are involved. The first peculiarity concerns the gap between law and technologies. Usually, legal reforms lag behind technological developments. As a result, the inertia of lawmakers in addressing this natural asymmetry weighs heavily on the shoulders of Courts. It should come as no surprise that Courts have played a key role in working out new solutions to new challenges generated by digital technologies.
The second reason for choosing to focus on privacy and data protection in the digital environment is connected to the jurisdictional issues brought about by the rise of the Web that resulted in crucial implications for the protection of fundamental rights. This second point is particularly relevant as Courts have been able to eradicate and establish jurisdiction successfully challenging the so-called anarchic nature of the Internet. This approach can be captured by looking at the beginning of the new millennium when national Courts started to reject the so-called ‘futility argument’, according to which laws based on geographic borders are not feasible on the Internet. Therefore, Courts have started to require a manipulation of the website architecture in order to reproduce territorial boundaries in the digital environment. In other words, the focus on relevant case law will show that geography and boundaries are crucial even for a global channel of communication like the Internet.
Returning to the research question mentioned above, the investigation of this chapter focuses on the approach of the ECJ to privacy and data protection online and the consequences for the fight against terrorism. This methodology is proper since the rise of the Internet has raised new challenges for the protection of fundamental rights. When addressing the digital environment, it is crucial to look at how privacy and data protection are perceived in the online dimension to understand how this influences the enforcement of these rights.
