Exploring the Synergies between Non-Discrimination and Data Protection: What Role for EU Data Protection Law to Address Intersectional Discrimination?
Abstract
In the European Union (EU), anti-discrimination policies have developed an intersectional dimension in recent years, the traditional sectorial approach having neglected differences in terms of gender, race, age, social status, ability, sexual orientation, etc., within a given vulnerable or marginalised group. In parallel, European data protection law has been reformed and enriched with new instruments, including the General Data Protection Regulation (GDPR). Considering that the collection and analysis of information that affects oppression dynamics ground the operationalisation of the intersectionality principle, European data protection law could play a pivotal role in enabling it. Nowadays, the GDPR grants specific protection to some special categories of data (which include racial or ethnic origin, genetic data, data concerning health or data concerning a natural person’s sex life or sexual orientation, etc.) that, to a certain extent, overlap with the information that ought to be disaggregated in accordance with the intersectionality principle. The processing of these data is forbidden unless one of the exceptions foreseen in Article 9(2) GDPR applies.
Yet, are these exceptions framed in a way to promote or undermine intersectionality? And, in general, what is the approach followed by EU data protection law towards intersectional discrimination matters? Building upon a review of data protection and anti-discrimination laws and legal literature, as well as policy documents, this paper will explore the interrelationships between the EU data protection law (in particular, the GDPR) and anti-discrimination law.
After briefly sketching the specific challenges raised by intersectional discrimination, it delves into EU data protection law’s understanding thereof, and compares the notions of sensitive data and protected grounds. Considering the importance of processing sensitive data to prevent and address (intersectional) discrimination, it will illustrate the rules applicable to sensitive data. It will then question the sufficiency of some of the exceptions ex Article 9(2) GDPR, focusing on the so-called ‘substantial public interest exception’, deemed the most relevant for intersectionality matters. Finally, it reflects upon the enforcement mechanisms set by the GDPR.
Downloads
Published
Issue
Section
License
EJLT is an open access journal, aiming to disseminate academic work and perspectives as widely as possible to the benefit of the author and the author’s readers. It is the assumption of the EJLT that authors who publish in the journal wish their work to be available as freely and as widely as possible through the open access publishing channel.
Authors who publish with EJLT will retain copyright and moral rights in the underlying work but will grant all users the rights to copy, store and print for non-commercial use copies of their work. Commercial mirroring may also be carried out with the consent of the journal. The work must remain as published – without redaction or editing – and must clearly state the identity of the author and the originating EJLT url of the article. Any commercial use of the author’s work - apart from mirroring - requires the permission of the author and any aspects of the article which are the property of EJLT (e.g. typographical format) requires permission from EJLT.
Authors can sometimes become no longer contactable (through, for example, death or retirement). If this occurs, any rights in the work will pass to the European Journal of Law and Technology which will continue to make the work available in as wide a manner as possible to achieve the aims of open access and ensuring that an author's work continues to be available. An author - or their estate - can recover these rights from EJLT by providing contact information.
The European Journal of Law and Technology holds rights in format, publication and dissemination.
EJLT, as a non-commercial organisation - which receives donations to allow it to continue publishing – must retain information on reader access to journal articles. This means that we will not give permission to mirror the journal unless we can be provided with full details as to reader access to each and every journal article. We prefer and encourage deep linking rather than mirroring. Encouragement is thus given for all users – commercial and non-commercial – to provide indexes and links to articles in the EJLT where the index or link points to the location of the article on the EJLT server, rather than to stored copies on other servers.
Please contact the European Journal of Law and Technology if you are in any doubt as to what this statement of use covers.