EU Protection of the Right to Privacy and Right to Personal Data and their Connection to the Gonzales Case and Beyond

Abstract

Protections of the right to privacy concerning publications have a relative ly long history in Europe. The first part of the article explores comparatively and historically, the mechanisms of such protections originated in the 19th century Germany and synthesized brilliantly by Brandeis and Warren in the U.S. This part includes a brief overview of European supranational protection of the right to privacy, as framed in article 8 of the European Convention of Human Rights and, more recently, in article 7 of the EU Charter of Fundamental Rights. The protections of the right to personal data in digital processing is a more recent occurrence in Europe. Few national constitutions or international instru ments recognize such rights, and even fewer jurisdictional remedies are associ ated with it. There are some significant exceptions, mainly at the supranational level, such as the EU Data Protection Directive (recently replaced by the EU General Data Protection Regulation) and Article 8 of the EU Charter of Funda mental Rights. The second part of the article briefly explores these protections, their inherent logic, and the implementing mechanisms as clearly different from those characterizing the protections of the right to privacy. The third part examines the articulation between the two protection mecha nisms, as reflected by the reasoning of the European Union Court of Justice on the famous Gonzales case. The decision implemented a right of de-listing as “right to be forgotten on the Internet” by the search engines. We propose a new reading for the reasoning of the Court, which underlines the essential role of protections of the right to privacy in grounding and circumscribing the data protection mech anisms of the EU Data Protection Directive within the decision. Last but not least, the article asses that the newly adopted EU General Data Protection Regulation will not affect the precedent created by the Gonzales and the adequate remedies it implemented.