Protecting Informational Privacy in Cyberspace: Exploring Complementary Routes

Autore:Jeanne Pia Mifsud-Bonnici
Carica:Associate Professor and Rosalind Franklin Fellow, University of Groningen, The Netherlands.
Pagine:105-122
RIEPILOGO

Introduction - 2. Informational Privacy - 3. Data Protection Law - 4. Scenario 1: Negligent Loss or Theft of Personal Information - 4.1.Responsibility of Nonstate Actors for Human Rights Violations - 4.2. State Responsibility in Case of Nonstate Actor Violation of Human Rights - 5. Scenario 2: Mergers and Acquisitions - 5.1. Personal Information as a Commercial Asset - 5.2. Competition Law - 6.... (visualizza il riepilogo completo)

 
ESTRATTO GRATUITO
Protecting Informational Privacy in Cyberspace:
Exploring Complementary Routes
JEANNE PIA MIFSUD BONNICI*
CONTENTS:Introduction – 2. Informational Privacy – 3. Data Protection Law – 4.
Scenario 1: Negligent Loss or Theft of Personal Information – 4.1.Responsibility of Non-
state Actors for Human Rights Violations – 4.2. State Responsibility in Case of Non-
state Actor Violation of Human Rights – 5. Scenario 2: Mergers and Acquisitions – 5.1.
Personal Information as a Commercial Asset – 5.2. Competition Law – 6. Conclusion
1. INTRODUCTION
Protecting informational privacy in cyberspace is difficult. The technical
infrastructure makes it remarkably easy to collect and use personal infor-
mation1, while there are few incentives in favour of the respect of privacy
over use of personal infor mation for commercial purposes. The Internet
and other technologies have created new opportunities for providers of
service to collect personal information easily, amass large databases of per-
sonal information and capitalize on the personal information for commer-
cial purposes. Our very presence on the Internet leaves valuable traces that
internet service providers, search engines, providers of social network sites,
credit card companies, web shops etc. can exploit at times with our consent
or our connivance or at times surreptitiously without caring to consider our
possible opposition. These providers (and users/merchants) of personal
information have become a primary threat for users’ privacy, at the same
time that the services they offer are simultaneously growingly indispensable
for many users. More than 90% of Internet users in Europe have registered
anxiety over abuse of personal infor mation online2. Governments too, may
be a threat to user privacy in the delivery of e-g overnment services and the
centralisation of personal information.
* The Author is Associate Professor and Rosalind Franklin Fellow, University of
Groningen, The Netherlands.
1P. SAMUELSON,Pri vacy as intellectual property? in “Stanford Law Review”, Vol.52, 2000, p. 1125.
2Eurobarometer Report, Confidence in the Information Society, May 2009, available at
http://ec.europa.eu/public_opinion/flash/fl_250_en.pdf.
To date, states have sought to protect (the fundamental right3of) pri-
vacy by specific personal data protection legislation and by encouraging
businesses to adopt privacy policies and practices to protect con-
sumer/user privacy. These approaches have limited effects, leaving con-
sumers often without any protection or remedies against abusive use of
their personal information. While in case of government traditional safe-
guards provided from fundamental human rights enforcement mecha-
nisms are also available – there is still an option to sue governments for
breaches of fundamental rights as judgements of the European Court of
Human Rights show – the responsibility of private companies for
breaches of informational privacy is still being worked out.
This paper reflects on the role that data protection legislation (name-
ly as implemented in European Member States following Directive
95/46/EC and other later directives) has in the protection of informa-
tional privacy online. It looks at two specific scenarios: possible remedies
where personal information has been negligently lost or stolen; and pos-
sible safeguards or remedies available when two or more private infor-
mation-rich businesses merge or are taken-over online. In each scenario,
it explores possible approaches that can be used to complement the cur-
rent systems of protection of personal information. The paper explores
two potentially complementary approaches:
The first approach is embedded in current theories of public interna-
tional law arguing for private sector fundamental rights responsibility. In
this part of the paper the author explores the usefulness of using devel-
opments in public international law on private sector responsibility for
breaches of fundamental rights – e.g. in the case of breach of property
rights or environmental rights – and the shifting of liability of private
sector liability to states in cases of breaches of fundamental rights – e.g.
where the state takes responsibility for breaches (of e.g. environmental
protection) carried out by private companies established in its territory.
The second approach is a market-based approach using competition
policy mechanisms to protect informational privacy. Traditionally, priva-
cy law and competition law have been considered to be two separate and
106 Diritti di libertà nel mondo virtuale della rete
3Protected by Article 8 of the European Convention of Human Rights.

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