Minority Protection, Data Collection and the Right to Privacy

Abstract

The more the state seeks to put in place modalities designed to address minorities’ specific situations, the more it needs information about them. This is true of both aspects of minority protection: measures aimed at protecting minority groups’ identity, as well as prohibition of discrimination. The necessity of collecting data on minorities has become a recurrent theme in opinions issued by the Advisory Committee on the Framework Convention on the Protection of National Minorities. This echoes the views expressed by other international bodies tasked with monitoring anti-discrimination. However, in various European countries, the perspective of public authorities recording information on ethnic or religious affiliation of individuals generates queries and fears. The question is often raised whether such practice would be compatible with privacy rights. This article submits that while the tension between minority protection and privacy rights is real, ways can be found to reconcile these two imperatives. Section I addresses the issue of personal data protection. It shows that collecting ethnic or religious data for the purpose of protecting minorities is not necessarily incompatible with European personal data protection norms. Part II grapples with the question of how individuals can be classified into ethnic categories. As will be seen, the criterion of self-identification tends to be considered as the most in line with international human rights law. Yet, the practice reveals that the use of this criterion does not come without problems. Based on a close analysis of the Advisory Committee and other international institutions’ work, it will be argued that self-identification is not an absolute rule: under certain conditions and within certain limits, other classification modes may be permissible under human rights law.