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7719 results in Intersentia

Page 167 of 386

  • Chapter 4 - Recommendations

  • from PART V - RECOMMENDATIONS
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 639-650

  • Summary

    1352. OUTLINE – The aim of this Chapter is to outline possible avenues for further improving the allocation of responsibility and liability among actors involved in the processing of personal data. The following recommendations shall be presented:

  • abolish the concepts of controller and processor or revise the definitions;

  • use standards and exemptions to mitigate risks of overinclusion;

  • require the providers of processing services to implement data protection by design;

  • enhance contractual flexibility in the relationship between controllers and processors; and

  • expand the scope of the personal use exemption.

    • ABOLISH THE CONCEPTS OR REVISE THE DEFINITIONS

    1353. Supporting differentiation – As indicated earlier, many issues associated the controller-processor model relate to the concepts of controller and processor, rather than the policy choice of differentiating between parties involved in the processing. For this reason alone, it is worth considering whether it is possible to omit the problematic concepts of controller and processor, while still supporting differentiation as regards the allocation of responsibility and liability. Using the liability provisions of the GDPR as the point of departure, the following paragraphs will outline how the GDPR might be revised to support such differentiation whilst omitting the concepts of controller and processor. Next, a proposal for possible revisions to the controller and processor and concepts will be presented.

    ABOLISHING THE CONCEPTS

    1354. ARTICLE 82 GDPR – Article 82 of the GDPR provides that

  • “1. Any person who has suffered material or immaterial damage as a result of an infringement of the Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.

  • 2. Any controller involved in the processing shall be liable for the damage caused by the processing which is not in compliance with this Regulation. A processor shall be liable for the damage caused by the processing only where it has not complied with obligations of this Regulation specifically directed to processors or acted outside or contrary to lawful instructions of the controller.

  • 3. A controller or processor shall be exempted from liability in accordance with paragraph 2 if it proves that it is not in any way responsible for the event giving rise to the damage.”

  • Chapter 1 - Introduction

  • from PART III - HISTORICAL-COMPARATIVE ANALYSIS
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 151-154

  • Summary

    “You have to know the past to understand the present”.

    Dr. Carl Sagan, 1980

    278. PREFACE – The concepts of controller and processor were not created out of thin air. Prior to Directive 95/46 and the GDPR, many other data protection instruments incorporated concepts with similar meaning and scope. The objective of this Part of the book is to enhance the understanding of the meaning and role of the controller and concepts by tracing the origin and development of these concepts over time.

    279. RELEVANT PERIODS – When one looks at EU data protection law from a historical perspective, four main periods can be distinguished, namely:

  • the emergence of national data protection laws (1970–1980);

  • internationalisation (1980–1981);

  • national implementation (1982–1994);

  • European harmonisation (1995–2016).

    • 280. SELECTION CRITERIA – In principle, every data protection instrument adopted during each of the aforementioned periods is worthy of analysis. A selection must be made, however, if only for practical reasons. Two criteria have guided the selection made here, namely (1) the desire to be comprehensive (i.e. to avoid large gaps in terms of chronology); and (2) ease of access and language considerations.

    281. APPLICATION – For the first period, three data protection laws were chosen, namely the data protection laws of Hesse, Sweden and France. The Hessian and Swedish acts were chosen simply because they represent the very first national data protection laws. The French data protection act was selected to bridge the gap between the first data protection laws the first international instruments of data protection and on the basis of language considerations. For the second period, Convention 108 and the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (“OECD Guidelines”) and Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data (“Convention 108”) were selected. An analysis of Convention 108 was deemed indispensable, as it provided the normative framework of the national implementations in the period that followed. The analysis of the OECD guidelines was deemed beneficial as the Guidelines were developed in parallel with Convention 108, and therefore offer additional insights into the meaning of the concepts employed by Convention 108. For the third period, two data protection laws were selected, namely the 1984 UK Data Protection Act and the 1992 Belgian data protection act.

  • Chapter 4 - Cloud Computing

  • from PART IV - USE CASES
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 467-510

  • Summary

    INTRODUCTION

    990. WHAT IS CLOUD COMPUTING? – Cloud computing has been defined in many ways. Often cited is the definition of the U.S. National Institute for Standards and Technology (NIST), which describes cloud computing as

    “a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.”

    The European Network and Information Security Agency (ENISA) has defined cloud computing in slightly more neutral terms, as

    “an on-demand service model for IT provision, often based on virtualization and distributed computing technologies.”

    991. KEY CHARACTERISTICS – Cloud computing involves the remote consumption of IT resources via a network (e.g. the Internet). Not every Internet application, however, is deemed worthy of the label of cloud computing. Most authors also consider “elasticity” and “measured service” as defining characteristics of cloud computing. Cloud providers typically allow customers to expand or decrease their resource consumption almost instantaneously, on a “pay as you go” basis. Finally, cloud services (especially infrastructure services) are often presented in a “virtualised” manner: providers dynamically assign and reassign resources from a pool which are shared as fungible resources with other customers.

    992. BENEFITS – When using cloud computing, the customer externalises part of its IT infrastructure and associated maintenance. Instead of purchasing his own hardware and software, the customer relies on the services of the cloud provider. Because customers normally pay by usage, they can avoid large upfront costs which may otherwise be necessary to set up and operate sophisticated computing equipment. Moreover, customers can scale up or down rapidly as their needs increase or decrease. Put differently, cloud computing promises “computing power on demand”, with limited or no expense beyond actual consumption. Providers, in turn, are able to leverage economies of scale, by pooling their resources and reaching large volumes of customers with relatively low overhead.

    993. RISKS – The risks of cloud computing mirror its benefits. By externalising portions of IT infrastructure, the customer invariably gives up a certain degree of control. Servers, data and applications are no longer kept within the organisation, but on the premises of one or more external providers. As a result, customers are by definition dependent on the cloud provider to implement appropriate measures to ensure the confidentiality and security of processing.

  • Chapter 7 - General Data Protection Regulation

  • from PART III - HISTORICAL-COMPARATIVE ANALYSIS
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 279-324

  • Summary

    ORIGIN AND DEVELOPMENT

    588. REVIEW OF DIRECTIVE 95/46 – For almost 15 years, Directive 95/46 stood strong as the central instrument of data protection regulation in the EU. The European Commission assessed its implementation in 2003 and 2007, both times concluding there was no need for revisions. In 2010, however, the Commission announced that the time for revisions had come. The Commission argued that while the objectives and principles underlying Directive 95/46 remained sound, revisions were necessary in order to meet the challenges of technological developments and globalisation.

    589. A CHANGING ENVIRONMENT – Formal preparations for the review began in July 2009, when the European Commission launched a public consultation “on the legal framework for the fundamental right to protection of personal data”. The consultation revealed concerns regarding the impact of new technologies on data protection, as well as a desire for a more comprehensive and coherent approach to data protection. Perhaps more significantly, 2009 was also the year when the Lisbon Treaty entered into force. Article 16 of the Lisbon Treaty provided the EU with a legal basis to enact comprehensive data protection legislation across Union policies (including in the area of police and judicial cooperation in criminal matters). It also gave the right to data protection renewed prominence: the right to data protection was recognized both by Article 16 of the Treaty and Article 8 of the EU Charter of Fundamental Rights, which became legally binding as the Lisbon Treaty entered into force.

    590. PUSH FOR (EVEN) GREATER HARMONISATION – A new public consultation ensued following the EC Communication of 4 November 2010. The Commission concluded that many stakeholders supported the idea of further harmonisation of data protection rules at EU level. The Commission also felt that despite its aim, Directive 95/46 had failed to ensure an equivalent level of protection throughout the EU. Persistent fragmentation meant legal uncertainty, administrative burden and an uneven protection for individuals. A Regulation would provide a strong and uniform legislative framework at EU level.

  • Romania

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 451-480

  • Summary

    In Romania family relations are regulated only by law.

    The principal source of civil law, which includes family law, is the Civil Code of Romania (officially Law no. 287/2009 of the Civil Code). The current Civil Code came into effect on 1 October 2011, replacing the old Civil Code of 1864, as well as the Family Code of 1953.

    Some aspects of family relations are regulated by special laws, which complete the norms within the Civil Code. Relevant in the context of relationships between adults and children are Law no. 272/2004 on the protection and promotion of the rights of the child, and Law no. 273/2004 concerning the legal status of adoption.

    The Romanian legal system does not recognise legal precedent as stare decisis.

    CHANGES IN THE TRADITIONAL FAMILY

    A. MOTHERS

    1. Is maternity automatically established by the birth certificate?

    As a general statement, according to Romanian law, in order to produce legal effects, filiation must be proven as prescribed. As a rule, civil status is established by acts produced by the civil service officers and the civil office certificates handed to the parties. Thus, proof of filiation is made through the act of birth of the respective person and the birth certificate produced on the basis of the former. For children born within a marriage, the marriage must be supported by the act of marriage itself, as well as the marriage certificate.

    The Romanian civil law system clearly states that maternal filiation is established ex lege, by the act of giving birth and by the birth certificate consequently released (Article 408 of the Civil Code).

    The birth certificate attests not only the fact of birth, but also the child's identity, by attesting that a certain woman gave birth to a child at a mentioned date and location and that the birth certificate holder and no other person was born by that woman in that specific place and at that given time.

  • Sweden

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 515-550

  • Summary

    CHANGES IN THE TRADITIONAL FAMILY

    A. MOTHERS

    1. Is maternity automatically established by the birth certificate?

    Maternity is established through the notification of a child's birth to the national population register. Unlike many other countries, Sweden does not issue ‘birth certificates’ per se. Rather, information is entered onto the national population register, which is administered and maintained by the Swedish Tax Agency. Extracts from the register are issued when they are needed for specific purposes.

    If the child is born in a Swedish hospital, the notification of birth must be made to the population register by the hospital. If a midwife assists with the birth, it is the midwife who is responsible for making the birth notification. In other situations, the child's custodian/s make the notification within one month of the child's birth.

    It should be mentioned that, with the exception of defining motherhood following egg donation (see Q. 17), the Children and Parents Code (SFS 1949.381) contains no general statutory provision clarifying maternity. In its absence, Swedish law continues to apply the unwritten presumption of maternity which stems from the Roman-law principles mater semper certa est (the mother is always certain) and mater est quam gestatio demonstrat (by gestation the mother is demonstrated).

    The mother of the child is, thus, the woman who gives birth to the child, and who is registered in the population register as the child's mother.

    2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

    No.

    3.– 4. If any kind of ‘anonymous childbirth’ is recognised, what rights does the natural mother have in respect of the child? / In the same situation, what are the child's rights in respect of the natural mother (and her other children)?

    Not applicable under Swedish law.

    B. FATHERS

    5. Is paternity automatically established by way of a presumption? If yes, does the presumption only apply within marriage?

    A man who is married to the child's mother at the time of the child's birth is automatically deemed to be the legal father of the child. That is to say, his paternity is presumed and automatically established through marriage. His paternity, however, may be revoked in certain situations, as set out in the Children and Parents Code.

  • Chapter 5 - National Data Protection Laws after 1981

  • from PART III - HISTORICAL-COMPARATIVE ANALYSIS
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 231-260

  • Summary

    472. OUTLINE – This chapter will analyse two data protection laws enacted after 1981, namely the UK Data Protection Act of 1984 and the Belgian Data Protection Act of 1992. The objective of this analysis is to track the further development of EU data protection laws leading up to Directive 95/46. In the interest of brevity, the discussion of each act shall be reduced in scope. The discussion will be limited to (1) the origin and development of the act (in order to place it in context) and (2) the allocation of responsibility and liability. Substantive rights and obligations are not discussed separately, as these provisions correspond, by and large, to the provisions of Convention 108 and the OECD Privacy Guidelines.

    UNITED KINGDOM (1984)

    ORIGIN AND DEVELOPMENT

    473. EARLY INITIATIVES – The UK Data Protection Act of 1984 had been a long time coming. The first legislative proposals concerning privacy emerged in the early 1960s, under the form of private member bills. These bills mainly sought to introduce a general right to privacy. None of these proposals made much of an impact, however, until the Right to Privacy bill of 1969. This bill was closely connected to a controversial Justice report entitled “Privacy and the Law” (1970). While the Right to Privacy bill was not adopted, the ensuing debate did induce the Government to appoint a Committee on Privacy, better known as the “Younger Committee”.

    474. YOUNGER COMMITTEE – The Younger Committee was tasked to investigate whether legislation was necessary “to give further protection […] against intrusions into privacy by private persons and organisations, or by companies”. Its mandate of inquiry was thus confined to the private sector. In 1972, the Committee found that it would be unwise to create a general right to privacy. It also felt that the introduction of data protection legislation would be premature as the use of computers did not yet form a threat to privacy. It did, however, recommend that computer users voluntarily adopt certain principles for handling personal information on computers. It also recommended that the Government “provide itself with machinery, such as a standing commission, for keeping under review the growth and techniques of gathering personal information on computers”.

    475. GOVERNMENT WHITE PAPER – After some years of delay, the UK Government issued a White Paper entitled “Computers and Privacy” (1975).

  • Philosophical Insights: The Weight of Truth in New Families

  • from PART II - INTERDISCIPLINARY APPROACH
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 641-656

  • Summary

    INTRODUCTION

    The transformation of families today also involves a transformation in their relation to truth. Isn't there a paradox one should see here? On the one hand, families seem to demand more truthfulness from their members. On the other hand, plural truths coexist and a commonly agreed story seems more complex to reach. Consequently, the issues relate to the harmonisation of the sometimes widely divergent family truths and those relating to the fact that a decision may have to occur about which contradictory version will be authoritative. The law plays a decisive role in this dynamic, since it must arbitrate between truths that have become irreconcilable. Our hypothesis is thus that these new families generate higher expectations with regard to truth while at the same time making it problematic. Undoubtedly new challenges are also emerging: to be able to, or to have to, establish a legal truth when dealing with difficult family narratives marked by unsaid, secrets and lies, while knowing that the word of authority may itself have devastating effects on family truths.

    THE DEMAND FOR TRUTHFULNESS AND THE PLURALITY OF FAMILY TRUTHS

    If the question of truthfulness is taking on a new importance in families, it is because families are increasingly based on the quality of relationships. Indeed, today, the quality of feelings between two persons seems to be what guides the couple. In fact couples increasingly seem to be based on an agreement based on feelings of two reflexive emotional personalities, who unceasingly think about and evaluate the way they live their lives, in order to assess whether it corresponds to their expectations and conditions in view of their accomplishment and their fulfilment. In addition, a child and children are no longer inevitability a question of fate, but the result of a decision, which is, itself, based on a desire. Consequently, couples and families see themselves as hubs of love and commitment where everyone is recognised in his/her uniqueness and can find a basis to develop their self-confidence.

    In the evolution of families, these demands lead to new pitfalls, because insofar as romantic relationships are more and more based on feelings and emotions, they are less long lasting than when the couple was based on moral and social engagement. Hence compositions, ruptures and recompositions abound in the history of couples and families.

  • Chapter 3 - The Human Right to Water in International Human Rights Law

  • Daphina Misiedjan
  • Book:
    Towards a Sustainable Human Right to Water
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    07 March 2019, pp 47-94

  • Summary

    “Access to safe water is a fundamental human need and, therefore, a basic human right. Contaminated water jeopardizes both the physical and social health of all people. It is an affront to human dignity.”

    INTRODUCTION

    Chapter 1 gave an introduction into the subject of this book. As explained, the focus of this research is on the realisation of vulnerable groups’ sustainable human right to water. It introduced the topic and some of the bottlenecks regarding the human right to water and sustainability. Chapter 2 argued that the concept of vulnerability within the human rights framework is currently too narrow to facilitate additional support and access to water for those groups who can be identified as specifically vulnerable in relation to water and other environmental human rights. It argued that environmental factors should be taken into account in assessing the vulnerability of individuals and groups, thereby recognising the impact that their situation has on the realisation of their rights.

    The recognition of the human right to water provides an opportunity for these groups to have their access to water realised. In order to clarify which rights individuals have in general and vulnerable groups in particular, this chapter discusses what the human right to water entails in international human rights law. This includes its legal foundations and normative content. The existence of the human right to water has been contested, however. With the adoption of General Comment No. 15 by the UN Committee on Economic, Social and Cultural Rights (CESCR), however, the right to water and sanitation have been authoritatively formulated in a non-legally binding instrument.

    This chapter commences with an overview of how the human right to water has emerged in the international arena and which developments it has experienced. This section illustrates that access to water was initially understood as a collective need, taking into account environmental protection, and it developed into a human right with an individual scope. It has subsequently moved back and forth between the environmental policy field and the human rights field which is a relevant development in relation to sustainable development. This cross-fertilisation and how it relates to aligning the human right to water and sustainability efforts will be further discussed in chapter 5.

  • Chapter 1 - General Introduction

  • Daphina Misiedjan
  • Book:
    Towards a Sustainable Human Right to Water
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    07 March 2019, pp 1-20

  • Summary

    ‘There is enough freshwater in the world to meet the existing and future needs of the world's population.’

    PAINTING THE CONTEXT

    Given the importance of water, it is a worrying fact that over 748 million people still do not have access to improved water and billions do not have access to safe drinking water. This situation can rightfully be classified as a crisis which has severe impacts on human health and the economy. For example, a lack of safe drinking water makes people prone to waterborne diseases such as diarrhoea. It also negatively affects economic activities and poverty reduction. In sub-Saharan Africa the number of people without access to safe drinking water increased by 63 million between 1990 and 2011 as a result of population growth and poor infrastructure. But also within the global water crisis a pattern of neglecting the needs of vulnerable groups in society can be identified across planning and resource allocation. These vulnerable groups can often be categorised along ethnic, geographical, and socio-economic divides but also along environmental lines.

    In a nutshell, it can be said that the water crisis is ‘both a natural and a humanmade phenomenon. There is enough freshwater on the planet for seven billion people but it is distributed unevenly and too much of it is wasted, polluted and unsustainably managed.’ This crisis has many factors which are interrelated and complicate matters when suitable solutions have to be found. The main factors contributing to the water crisis can be listed as follows:

    The (mis)management of water

    In its first World Water Development Report, the United Nations identified that ‘the water crisis is essentially a crisis of governance and societies are facing a number of social, economic and political challenges on how to govern water more effectively.’ Governance in this area is largely failing due to a lack of adequate water institutions and fragmentation in institutional arrangements. For instance, failing to recognise that water is a topic which cuts across sectors means that many states approach water as a separate and independent sector within policy areas. At first sight, this may seem appropriate, but this approach results in a further compartmentalisation of water by dividing it between departments, policies and other authorities which then become responsible for developing separate strategies for health, food, agriculture and energy, to name just a few areas.

  • Chapter 5 - Enhancing the Human Right to Water. Finding Inspiration from the Concept of Sustainable Development

  • Daphina Misiedjan
  • Book:
    Towards a Sustainable Human Right to Water
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    07 March 2019, pp 123-154

  • Summary

    ‘The manner of the realization of the right to water must also be sustainable, ensuring that the right can be realized for present and future generations.’

    INTRODUCTION

    The previous chapters have set the stage for answering the (main) research question: how can a sustainable human right to water be formulated for the enjoyment of vulnerable groups? This study finds the answer by supplementing the human right to water with elements from the concept of sustainable development. Elements discussed in previous chapters can support the implementation and further development of the human right to water for vulnerable groups. Chapter 2 explains which individuals can be considered vulnerable and focusses especially on those who are currently unserved or underserved. These individuals are not only at risk of having their human right to water infringed due to financial or social constraints. Vulnerable groups experience an additional risk when they are unable to depend on their natural surroundings to meet their water needs due to, for instance, drought or pollution. For this reason, connecting environmental vulnerability to social vulnerability can provide a more effective approach in safeguarding the human right to water for all individuals and groups at risk.

    Chapter 3 provided a detailed overview of the content of the human right to water and states’ obligations. It was also explained that access to water originated from environmental law and policy and developed into a human right. However, along the way it has lost elements which take environmental factors into account. These environmental factors are however highly relevant for the effective realisation of the human right to water. Taking environmental factors into account will allow the right to be effectively implemented in the natural context where it is supposed to function.

    For this reason, this study seeks inspiration from the concept of sustainable development which was explained in Chapter 4. Here the content and its connected principles were analysed. The current chapter builds on the previous chapters and argues for the inclusion of elements of sustainable development and its alignment with human rights. These approaches add to the human right to water as they can be used to facilitate sustainable water management which is necessary for the human right to water to function in today's water-scarce context. This chapter therefore focusses on how sustainable development can assist in implementing and realising the human right to water.

Page 167 of 386