(Dis)advantages of Data Protection
Data protection is a far from perfect mechanism for protecting privacy in a digital age, but a perfect mechanism does not exist. Different jurisdictions take different approaches; data protection is the approach taken by Europe. America prefers to rely upon contractual arrangements and a patchwork of State and Federal provisions. The European approach has its own advantages and disadvantages, some of which are discussed below.
- Data Protection is technology neutral, so a regime enacted in 1995 (when Mark Zuckerberg was 11) can be used to regulate Facebook today;
- It’s all encompassing; data protection applies to just about everything outside the (narrowly defined) domestic sphere;
- It provides subjects with non-negotiable rights. You retain your rights as a data subject, such as access and objection, even where you consent to the processing of your personal data.
- Data protection lacks definitions, which makes it technologically neutral, but also more difficult to enforce.
- Data protection is indiscriminate, it applies to a small business or a club in the same way as it applies to a global conglomerate.
- Data networks are global, but data protection is local.
Data protection is often described as a variant of the right to privacy. But a better view may be that data protection enables the management of privacy so as to enable the flow of data within the EU. This is clear from Article 16 of the Treaty on the Functioning of the EU, which provides that the EU must legislate both for the protection of personal data and “…the rules relating to the free movement of such data”.