Data protection’s function in society: a search for the limits of a non-absolute right
Abstract
The right to data protection is not absolute, but rather it ‘must be considered in relation to its function in society and be balanced against other fundamental rights’ (Recital 4, GDPR). This necessarily invites us to ask–what is the function of data protection in society? This article examines how the CJEU has used the concept to emphasise the non-absolute nature of the right. This article traces the use of this concept and demonstrates that the notion is used by the Court as a rhetorical device to justify the limitation of the right to data protection in various balancing contexts. It is linked to the non-absolute nature of the right to data protection, though has not been endowed with any substantial independent meaning to date. I contend that the inconsistency in the treatment of data protection’s function in society is representative of challenges associated with balancing exercises by the Court. While the non-absolute nature of the right has not been a check on the expansionist tendencies of the Court in relation to the scope of data protection, it has had some effect in moderating obligations under data protection law. Further, this examination of the cases reveals a range of contexts in which the Court of Justice is resolving complex debates between different normative and political objects through the prism of the right to data protection. Given the concerns about the ever-increasing scope of data protection, I suggest a re-engagement with the limits of data protection is desirable, informed by broader range of fundamental rights jurisprudence.
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