European Streams of Protection for Right to Privacy and Right to Protection of Personal Data, and Their Connection in the EU Gonzales Case and Beyond

Abstract

Protections of the to privacy concerning publications have a relatively long history in Europe. The first part of the article explores comparatively and historically, the mechanisms of such protections originated in the XIXth century Germany and synthesized brilliantly by Brandeis and Warren in the US. This part includes a brief overview of European supranational protection of the to privacy, as framed in article 8 of the European Convention of Human Rights and, more recently, in article 7 of the EU Charter of Fundamental Rights. The protections of the to personal data in digital processing is a more recent occurrence in Europe. Few national constitutions or international instruments recognize such rights, and even fewer jurisdictional remedies are associated with it. There are some significant exceptions, mainly at the supranational level, such as the EU Data Protection Directive (recently replaced by the EU General Data Protection Regulation) and Article 8 of the EU Charter of Fundamental Rights. The second part of the article briefly explores these protections, their inherent logic, and the implementing mechanisms as clearly different from those characterizing the protections of the to privacy. The third part examines the articulation between the two protection mechanisms, as reflected by the reasoning of the European Union Court of Justice on the famous Gonzales case. The decision implemented a of de-listing as right to be forgotten on the Internet, by the search engines. We propose a new reading for the reasoning of the Court, which underlines the essential role of protections of the to privacy in grounding and circumscribing the data protection mechanisms of the EU Data Protection Directive within the decision. Last but not least, the article asses that the newly adopted EU General Data Protection Regulation will not affect the precedent created by the Gonzales and the adequate remedies it implemented.