The Group, the Private, and the Individual: A New Level of Data Protection?

Abstract

Current trends in Open and Big Data have led certain scholars to suggest the idea of expanding the notion of the “data subject” to include the protection of data groups. Nothing precludes this expansion, however, there is a question as to the type of supra-individual right groups can be given, i.e. whether data group rights should be conceived of as rights of the group qua group or, alternatively, as complementary to the protection and enforcement of individual rights. The latter has materialized with the protection of intimate associations of large civic or business membership organizations in US law (corporate rights), and also vis-a-vis from the legal safeguards enshrined in Articles 7 and 8 of the EU Charter of Fundamental Rights (collective/procedural rights). This contrast entails a further distinction between the fields of privacy and data protection as in connection with the different kinds of interests, or goods, the legal systems are aiming to protect. By examining certain specific problems affecting current data protection, referred to here collectively as “data fetishism,” the goal is to offer a normative standpoint upon which sides can be taken in today’s debate as to any new level of data protection.