How to assess privacy violations in the age of Big Data? Analysing the three different tests developed by the ECtHR and adding for a fourth one

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Abstract

It is commonly believed that privacy cases are resolved by balancing the private interest (e.g. personal autonomy) and the common interest (e.g. national security) involved with a particular privacy violation. Clearly, this approach no longer holds in the age of Big Data, in which massive amounts of personal data are gathered without a pre-established goal. Not only is the balancing test inapplicable because it is often unclear how certain data gathering and processing initiatives improve the societal interest, but it is also hard to demonstrate whether and if so how an individual has suffered from such massive data processing systems. Besides the balancing test, however, the European Court of Human Rights (ECtHR) applies two other tests when dealing with privacy issues. Both have an added value when applied to privacy violations following from Big Data processes. Still, if Article 8 of the European Convention on Human Rights (ECHR) is to retain its significance in the new technological environment, it might be necessary to develop a new test, the rudiments of which might already be found in the Court's case law.
Original languageEnglish
Pages (from-to)74-103
Number of pages30
JournalInformation & Communications Technology Law
Volume24
Issue number1
DOIs
Publication statusPublished - 2015
Externally publishedYes

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privacy
human rights
Data privacy
National security
personal data
ECHR
case law
national security
value added
autonomy
Processing
Big data

Cite this

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title = "How to assess privacy violations in the age of Big Data? Analysing the three different tests developed by the ECtHR and adding for a fourth one",
abstract = "It is commonly believed that privacy cases are resolved by balancing the private interest (e.g. personal autonomy) and the common interest (e.g. national security) involved with a particular privacy violation. Clearly, this approach no longer holds in the age of Big Data, in which massive amounts of personal data are gathered without a pre-established goal. Not only is the balancing test inapplicable because it is often unclear how certain data gathering and processing initiatives improve the societal interest, but it is also hard to demonstrate whether and if so how an individual has suffered from such massive data processing systems. Besides the balancing test, however, the European Court of Human Rights (ECtHR) applies two other tests when dealing with privacy issues. Both have an added value when applied to privacy violations following from Big Data processes. Still, if Article 8 of the European Convention on Human Rights (ECHR) is to retain its significance in the new technological environment, it might be necessary to develop a new test, the rudiments of which might already be found in the Court's case law.",
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AB - It is commonly believed that privacy cases are resolved by balancing the private interest (e.g. personal autonomy) and the common interest (e.g. national security) involved with a particular privacy violation. Clearly, this approach no longer holds in the age of Big Data, in which massive amounts of personal data are gathered without a pre-established goal. Not only is the balancing test inapplicable because it is often unclear how certain data gathering and processing initiatives improve the societal interest, but it is also hard to demonstrate whether and if so how an individual has suffered from such massive data processing systems. Besides the balancing test, however, the European Court of Human Rights (ECtHR) applies two other tests when dealing with privacy issues. Both have an added value when applied to privacy violations following from Big Data processes. Still, if Article 8 of the European Convention on Human Rights (ECHR) is to retain its significance in the new technological environment, it might be necessary to develop a new test, the rudiments of which might already be found in the Court's case law.

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