The Right to the Protection of Personal Data (Dreptul la Protecţia Datelor cu Caracter Personal)

Abstract

(The article is written in Romanian)This article aims to analyze, from two perspectives, the right to the protection of personal data, a right which had maybe the most dynamic evolution in the last three decades on a very narrow niche. Firstly, we will focus on the right’s content by analyzing thoroughly the provisions which enshrine it. Secondly, we are interested to reason whether it is a new fundamental right, distinct from the right to the protection of private life or not. The right to the protection of personal data was born out of the necessity to protect the individual from the avalanche-like development of a computerized human society. Personal data have been legally defined as,any information relating to an identified or identifiable natural person,” covering, therefore, a generous sphere of protection.Because it is a relatively new and less known right, we are interested in describing this generous sphere of protection. We will look upon the first important legal act which regulated distinctly and in detail the right to the protection of personal data – the 108 Convention of the Council of Europe from 1981 for the protection of individuals with regard to automatic processing of personal Data. Further, we will analyze Article 16 of the Treaty of Lisbon which enshrines the right to the protection of personal data. This provision was introduced for the first time in an EU treaty in Article 16, which became the central piece in the protection of personal data in the Member States of the EU. We will analyze the extent in which Article 16 may enjoy direct effect. Further we will concentrate on Article 8 of the Charter of Fundamental Rights of the European Union, which is exclusively dedicated to data protection.In the next section we will analyze the content of this right from the perspective of the provisions of Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. We will look upon the criteria for making data processing legitimate, the special categories for processing and the scope of the independent supervisory authorities created in all EU Member States.In the last section we will analyze the possibility that the right to the protection of personal data is a new fundamental right from both a formal and a substantial point of view.