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Summary

There seems to be an increasingly wide chasm between technological developments and the juridical paradigm. The juridical paradigm is focused on individual, subjective rights and personal interests, while new technological applications such as Big Data and mass surveillance do not revolve around the individual per se. The individual and individual interests are only incidental to these types of data analytics. These processes thrive on data sets about large groups of unidentified persons, from which statistical correlations and patterns are distilled. They can serve as a basis for data controllers to develop general policies and make decisions which have a significant impact on society.

This book will show that the legal privacy paradigm did not always focus on subjective rights and individual interests to the extent that it currently does. Rather, the focus was on duties of care for data controllers and states not to abuse their power, and on protecting general, societal interests. The turn to subjective rights and individual interests, a turn which is by no means exclusive to privacy and data protection, was seen as a sign of progress. Individuals could invoke rights themselves before a court of law if they were under the impression that their interests had been harmed. The shift from general obligations for data controllers to subjective rights for natural persons, and from a focus on general, societal interests to a focus on personal interests, was aimed at strengthening the position of the individual. The paradox, however, is that it is precisely due to the focus on subjective rights and personal interests that the position of the individual and her interests are no longer adequately protected in the current technological paradigm. That is why this book will argue for a renewed emphasis on duties of care and general, societal interests, and develop an additional approach to privacy regulation by turning to virtue ethics.

The first signs of such a shift may already be witnessed in recent developments in the various juridical privacy and data protection frameworks. This book will signal and explain those trends. Furthermore, it will develop a normative framework for this shift and the additional approach to privacy and data protection regulation that arises from that shift.

Summary

INTRODUCTION

The previous chapter argued that both the right to privacy and the right to data protection are (1) increasingly seen as subjective rights of natural persons instead of duties (of care) for states and data controllers, (2) increasingly focused on individual instead of general interests, (3) increasingly balanced by courts against other interests instead of a necessity test being applied and (4) increasingly codified (in detail) and enforced through legal means. As has been suggested in the introduction, in the current technological environment with developments such as Big Data, however, the individualized and legalized approach to privacy is becoming increasingly problematic. This will be discussed in Section 2 of this chapter. Section 3 shows that the European Court of Human Rights is confronted with this tension, especially in large data processing cases but also other matters, and is subsequently faced with a principled choice when dealing with these cases. Either it sticks to the basic pillars of the current privacy paradigm, as discussed in detail in the previous chapter, and consequently is unable to address those cases adequately, or it chooses to develop a new approach to privacy in order to adequately tackle the problems involved with these types of cases. Interestingly, it chooses the latter approach. Section 4 will analyze some of the scholarly literature in which alternatives to the current privacy paradigm have been proposed.

THE CHALLENGES BIG DATA POSES TO THE CURRENT LEGAL PARADIGM

This section discusses the current legal framework and shows on which points Big Data practices and mass surveillance activities may challenge the fundaments of the legal framework. It would go too far to discuss all points in detail. Instead, three conflicts will be shown. First, Big Data conflicts with the material provisions in the Data Protection Directive and the General Data Protection Regulation. Second, Big Data challenges law's focus on the individual. Third and finally, Big Data challenges regulation based exclusively on legal means. A few examples will be given to illustrate these three points, without aiming to be exhaustive.

BIG DATA AND DATA PROTECTION

The classic data protection principles seem to be challenged by Big Data processes. This is confirmed by a survey conducted among all DPAs in the European Union.

Privacy as Virtue discusses whether a rights-based approach to privacy regulation still suffices to address the challenges triggered by new data processing techniques such as Big Data and mass surveillance. A rights-based approach generally grants subjective rights to individuals to protect their personal interests. However, large-scale data processing techniques often transcend the individual and their interests. Virtue ethics is used to reflect on this problem and open up new ways of thinking. A virtuous agent not only respects the rights and interests of others, but also has a broader duty to act in the most careful, just and temperate way. This applies to citizens, to companies such as Apple, Google and Facebook and to governmental organizations that are involved with large scale data processing alike. The author develops a three-layered model for privacy regulation in the Big Data era. The first layer consists of minimum obligations that are independent of individual interests and rights. Virtuous agents have to respect the procedural pre-conditions for the exercise of power. The second layer echoes the current paradigm, the respect for individual rights and interests. While the third layer is the obligation of aspiration: a virtuous agent designs the data process in such a way that human flourishing, equality and individual freedom are promoted.

Summary

INTRODUCTION

Chapter II showed that both the privacy and the data protection paradigm have transformed of the years. These doctrines are (1) increasingly seen as subjective rights of natural persons instead of duties (of care) for states and data controllers, (2) increasingly focused on individual instead of general interests, (3) increasingly balanced by courts against other interests instead of a necessity test being applied and (4) increasingly codified (in detail) and enforced through legal means. Chapter III showed that these four characteristics are put under pressure by developments known as Big Data and mass surveillance. In particular, it argued that most of the material provisions in the Data Protection Directive and the General Data Protection Regulation are undermined and that the almost exclusive focus on the individual (rights, interests and balancing) and legal regulation are difficult to maintain.

Chapter III also showed that in jurisprudence, in the law and in the literature, there is an increasing awareness of these tensions. The European Court of Human Rights has been willing to let go of its individualized interpretation of privacy in exceptional cases, the General Data Protection Regulation has introduced the concept of Data Protection Impact Assessments in the realm of data protection, and in the literature scholars have suggested a focus on group privacy, relational privacy and collective interests. The chapter concluded by suggesting that it might be worthwhile to take a closer look at agent-based theories. Those theories focus on the agent of an action, instead of the patient of an action (the one being acted upon). One such theory is virtue ethics. This chapter will discuss what virtue ethics entails and how it could be implemented in the legal realm. The next chapter will suggest what such an approach to privacy regulation might look like and how it could be implemented in practice.

This chapter endeavors to do two things. First, Section 2 will discuss the notion of virtue ethics. Second, Section 2 will analyze some of the most prominent arguments against adopting a virtue ethical approach to (privacy) regulation. It will consist of 3 subsections. First, it will provide the general contours of virtue ethics. Second, it will discuss in some further detail what a virtue ethical approach to the legal regime in general might entail. It will do so by analyzing the work of Lon L. Fuller.

Summary

INTRODUCTION

This chapter introduces the European approach to privacy and data protection. Two things are important to point out from the start. First, there are differences between the right to privacy and the right to data protection, which will be described in more detail below. Perhaps the most prominent difference lies in the material scope. The right to privacy usually does not extend to the collection of nonprivate and non-privacy-sensitive data, whereas the term ‘personal data’, central to most data protection documents, is not limited to private or sensitive information, but extents to any data with which someone could potentially be identified. ‘Even ancillary information, such as “the man wearing a black suit” may identify someone out of the passers-by standing at a traffic light.

’Second, this study will primarily discuss the European perspective and in doing so will refer to documents of both the European Union (EU) and the Council of Europe (CoE). For privacy, the case law by the European Court of Human Rights (ECtHR) on Article 8 of the European Convention on Human Rights (ECHR) will be central and with regard to data protection, the EU's Data Protection Directive and the General Data Protection Regulation, which will replace the Directive over time, will function as the primary (though not exclusive) points of reference.

Article 8 ECHR grants a right to respect for private and family life, home and correspondence:

Summary

INTRODUCTION

Chapter II has discussed both the current and the original privacy and data protection paradigm. In broad strokes, it signaled a shift on four points, by contrasting the ‘original’ with the ‘current’ approach – both were presented in idealized form. First, there has been a shift away from protecting privacy through duties of care and doctrines based on the abuse of power, and towards granting subjective rights to natural persons. Second, there has been a shift away from the protection of general and societal interests and towards an, almost exclusive, focus on the protection of personal interests of natural persons. Third, there has been a shift away from a more fundamental, rule-of-law-based perspective when determining the outcome of privacy cases and towards adopting the method of balancing as a standard approach. Fourth and finally, there has been a shift away from an approach which combined legal and ethical forms of regulation, and towards a paradigm which almost exclusively focuses on legal regulation and black letter law.

Chapter III showed how the current privacy paradigm conflicts with new technological developments, such as, for example, Big Data processes. First, it showed that claiming individual rights is increasingly difficult for natural persons in the age of Big Data. Second, it stressed that these types of processes increasingly go beyond individual interests, and instead tend to affect general and societal interests. Third, it pointed out that the method of balancing is oft en difficult to apply in cases concerning Big Data processes. Fourth, it argued that solely relying on black letter law does not allow for an adequate regulation of Big Data processes. Chapter III also showed that alternatives to the current privacy paradigm have been developed, both in the literature and in case law. Although some of these alternatives are insightful and provide useful building blocks, they do not lay down a fully developed and theoretically grounded alternative privacy paradigm that overcomes the difficulties faced by the current privacy paradigm.

Chapter IV argued that such a foundation may be found by turning to virtue ethics, especially through its reinterpretation by Lon L. Fuller. This chapter demonstrated that a virtue-based approach may provide alternatives to each of the four points mentioned. Virtue ethics does not focus on the rights of the patient, the data subject, but on the obligation on the agent to be virtuous, in this case the state.

Summary

MAIN ARGUMENT

The core question of this book is whether a rights-based approach to privacy regulation still suffices to address the challenges triggered by new data processing techniques such as Big Data and mass surveillance. A rights-based approach generally grants subjective rights to individuals to protect their personal interests. However, large-scale data processing techniques often transcend the individual and her interests; they may affect broader and more general values. To provide an example, it is very difficult to specify whether and if so, to what extent the large-scale data gathering activities of the NSA have negatively affected the personal interests of an ordinary U.S. or E.U. citizen, which holds true even for broader values such as human dignity, individual autonomy and personal freedom. Similarly, although specific individuals may be filmed by the thousands of CCTV camera's surveilling some European cities, the problem is not so much that these camera's film specific individuals; the problem is that everyone or almost everyone living in these cities is filmed almost constantly and everywhere. Consequently, rather than affecting specific personal interests, such data processing initiatives seem to revolve around general and societal interests.

On a practical level, the problem is that people are oft en simply unaware that their personal data are gathered by either fellow citizens (e.g., through the use of smart phones), by companies (e.g., through tracking cookies) or by governments (e.g., through covert surveillance). Obviously, people who are unaware of their data being gathered will not invoke their right to privacy in court. But even if people were aware of these data collections, given the fact that data gathering and processing is currently so widespread and omnipresent and will become even more so in the future, it will quite likely be impossible for them to keep track of every data processing initiative involving (or potentially involving) their data, to assess whether the data controller abides by the legal standards applicable, and if not, to file a legal complaint. Consequently, it is increasingly the question whether individuals are able to effectively exercise their rights.

It is important to stress, however, that a rights-based approach to privacy regulation will need to be preserved to address issues in which individual interests are at stake.

Summary

CONCLUSION BY AREA?

Apart from Italy, the Member States under analysis remedy reverse discrimination in some cases and allow it in others. Part II has discussed the assessments by national authorities of situations of reverse discrimination on the basis of the area in which these cases could be situated. The question arises as to whether a conclusion can be drawn on the basis of the area in which the reverse discrimination arises. In particular, it might be that reverse discrimination in the area of the free movement of goods is considered to be less problematic than in the area of freedom of movement for persons. That is to say, the free movement of goods is generally considered to be a less sensitive area than the freedom of movement for persons.

It was found that there were three out of five cases in the area of the free movement of goods in which the national authority allowed reverse discrimination, 1259 while there were only three out of ten cases in the area of the freedom of movement for persons in which reverse discrimination was allowed. 1260, 1261 Admittedly, only a limited number of assessments of reverse discrimination by national authorities were examined. Hence, this finding should not be given too much weight.

Moreover, there appear to be no persuasive arguments for the proposition that situations of reverse discrimination of goods should never be considered to be problematic or that situations of reverse discrimination in the area of freedom of movement for persons should always be considered to be problematic. It is submitted that the key to distinguishing problematic from unproblematic situations of reverse discrimination lies less in the area of goods versus persons, and more in the concept of compensation versus overcompensation by Union law.

APPLICATION OF THE WORKING HYPOTHESIS TO THE NATIONAL LEVEL

INTERPRETATION OF COMPENSATION AND OVERCOMPENSATION AT NATIONAL LEVEL

In Part II, the working hypothesis based on the concept of compensation and overcompensation to the national level was applied. That is to say, for each situation of reverse discrimination assessed at national level, we examined whether a mere compensation or an overcompensation by Union law was at stake.

Summary

THE STATUS OF REGIONS FROM A UNION PERSPECTIVE

This chapter will first describe the attitude of the EU vis- à -vis regions in general. This will be done by drawing both upon the Treaties and the Court's case law on these matters.

It should be pointed out that different denominations are used regarding the terminology in the context of federally structured Member States. The Treaties refer to ‘regions’ and ‘regional and local authorities’. The ECJ also uses the term ‘infra-State bodies’, in particular in the context of cases on State aid. Finally, Advocates General have used the terms ‘decentralised authority’ and ‘devolved administrations’. In general, this book uses the denominations employed in the Treaties, but when discussing ECJ cases or the opinion of an Advocate General, the denominations put forward by them will be used.

THE ECJ'S CASE LAW ON THE INTERNAL DIVISION OF COMPETENCES WITHIN A MEMBER STATE

The Autonomy of the Member States in the Allocation of Internal Powers

It is the ECJ's well-established case law that a Member State may freely allocate internal legislative powers as it sees fit and implement Union law by measures from regional or local authorities. In other words, the question as to which entity of a Member State ought to implement or transpose Union law is not a matter of Union law, but one which is governed by the national rules concerning the internal division of competences within that Member State. However, the Union measures at issue have to be implemented correctly.

The ECJ Does Not Accept Hiding behind Domestic Rules on State Structure

Although each Member State is free to organise its internal structure, the fact remains that it alone is responsible towards the Union, under Article 258 TFEU, for compliance with its obligations under Union law. If EU law is not implemented correctly by the regional or local authority, then the Member State is held liable and the latter may not take shelter behind the national constitutional rules on the internal division of competences in order to avoid the ECJ finding that the Member State has failed to fulfil its obligations under Union law.

Summary

This work has distinguished between ‘classic cases’ of reverse discrimination and cases of reverse discrimination in a federal state context. Parts I and II discussed ‘classic cases’ of reverse discrimination in which a Member State treats its own nationals in a purely internal situation more strictly than Union citizens falling within the ambit of Union law. Part III will focus on ‘specific cases’ of reverse discrimination. These concern situations of reverse discrimination in a federally structured Member State. That is to say, it may happen that the reverse discrimination only affects some of the Member State's own nationals, in particular those who do not fall under the jurisdiction of the regional authority granting certain rights to the nationals falling under its jurisdiction.

Regional authorities often reserve benefits to persons residing in the territory falling under their jurisdiction. For instance, residents can benefit from free or discounted access to public services, such as swimming pools, museums, theatres, sports events, etc, or residents may have the right to use their own language vis- à -vis public authorities. In order to comply with the Treaty provisions on free movement and the principle of non-discrimination on grounds of nationality, the regional authority treats nationals of other EU Member States like their own residents and grants them the same benefits. Accordingly, specific cases of reverse discrimination may arise.

A notorious example of a specific case of reverse discrimination in a federal state context is the Flemish Care Insurance case, which will be discussed in detail as a common thread throughout this part. For now, it suffices to point out that the system of Flemish care insurance as determined by the Decree excluded from its benefits Belgian citizens who worked in the Dutch-speaking region or in the bilingual region of Brussels Capital, but who lived in the French- or German-speaking region and who never exercised their right to free movement. This complex case of reverse discrimination is the result of both the ECJ's and the Belgian Constitutional Court's judgment on the case. That is, on the basis of Union law, Union citizens who had exercised their right to free movement had to be included.

Summary

The question arises as to whether there is a substantial difference between classic cases of reverse discrimination, on the one hand, and specific cases of reverse discrimination in a federal state context, on the other. This author does not think so. Specific cases of reverse discrimination are also a possible side effect of the limited scope of application of regulations of different levels of government. However, the situation is more complex since an extra level of government is added in the case of specific cases of reverse discrimination, namely, the regional level within a Member State. Since no substantial difference exists between classic and specific cases of reverse discrimination, it was possible to apply the working hypothesis based on (over)compensation to the latter cases too.

SPECIFIC SITUATIONS OF REVERSE DISCRIMINATION FROM THE UNION PERSPECTIVE

Specific situations of reverse discrimination could be prevented at the Union level, by the ECJ or by the Union legislator. The ECJ could do so on the basis of two divergent positions. First, when assessing restrictions to the freedom of movement within the EU, the ECJ could regard the relevant regulatory authority – be it the Member States or decentralised authorities within a single Member State – as the relevant frame of reference. If the regional authority is taken to be the relevant reference framework, the Flemish community in the Flemish Care Insurance case for instance, we would no longer be confronted with a specific situation of reverse discrimination, not even with a ‘traditional’ case of reverse discrimination. Instead, a ‘traditional’ violation of the Treaty provisions on free movement would be at stake. This position is mainly defensible from the perspective of the promotion of freedom of movement within the EU, but it seems too undermining for the Member States’ federal State structure.

Secondly, in the light of Article 18 TFEU, the ECJ could compare citizens of other Member States to the whole group of citizens of the home Member State, instead of comparing citizens of other Member States with the small group of citizens who benefit from more favourable treatment by their regional authority.

Summary

Classic free movement rights of persons is discussed separately from family reunification, the latter based on Directive 2004/38 or on Articles 20 and 21 TFEU on Union citizenship, even though it has been argued that ‘the Court appears to be moving towards a convergence of approach under articles 45, 49, 56 and now article 21(1) TFEU on citizenship’. Two main reasons relating to the nature of family reunification justify this decision. First, family reunification concerns derived rights for third country nationals who are family members of Union citizens while classic economic free movement rights concern Union citizens directly. Secondly, family reunification is one of the main sources of immigration to the EU, and immigration is traditionally a competence of the sovereign State, which makes it a delicate issue politically.

CLASSIC ECONOMIC FREE MOVEMENT RIGHTS OF PERSONS

Reverse discrimination in the area of the classic economic free movement of persons often occurs in the area of employment. In particular, a lot of cases concern professional qualifications. For instance, Member States sometimes reserve certain jobs for persons with a very specific education or diploma. This kind of regulation aims to guarantee a high quality of work. However, it is often incompatible with the Treaty provisions on free movement because it creates a restriction to free movement within the EU, perhaps because the education or diploma may not exist in that form in other Member States, for instance. Moreover, a lot of cases of reverse discrimination concern employment conditions such as less favourable wage-setting mechanisms or fixed-term contracts instead of contracts of an indeterminate duration.

Reverse discrimination in the area of the classic economic freedom of movement for persons also occurs regarding the rights of persons acquiring goods. For instance, some Member States impose authorisation procedures on the acquisition of buildings and land, or they subject the right of heirs to cumbersome modes of evidence of their status and/or rights. Since these strict conditions are often considered to comprise restrictions to free movement within the EU, they only remain applicable to purely internal situations and hence situations of reverse discrimination arise.

Summary

The reverse discrimination of goods often occurs in regulations on food and drinks. In particular, a lot of Member States have established some form of regulation in order to protect the reputation of specific regional products. These products must meet certain standards before they are allowed to use a specific denomination, such as containing certain ingredients or being made through a specific production process. This type of regulation not only aims to protect the reputation of the products, but it also aims to guarantee these products ‘ quality and to avoid consumers being misled.

In a lot of cases the strict conditions imposed upon products are incompatible with the Treaty provisions on free movement because they create a restriction to free movement within the EU. Accordingly, these rules cannot be applied to cross-border situations, but they may remain applicable to purely internal situations. National producers selling these goods in their home Member State might challenge this situation of reverse discrimination, by claiming, for instance, that it leads to unfair competition and an unjustified difference in treatment.

The recent changes in the Belgian legislation on mayonnaise illustrate the awareness of the competing interests which are at stake in a situation of reverse discrimination of goods. That is to say, Belgian mayonnaise had to contain at least 80 per cent fat and 7.5 per cent egg yolk. By contrast, other EU Member States had aligned their legislation with the code of good practice adopted in 1991 by the Fédération des Industries Condimentaires au niveau européen which provides 70 per cent fat and 5 per cent egg yolk for mayonnaise. Belgian producers of mayonnaise complained about the stricter rules for producing mayonnaise in Belgium.

In 2005, the Belgian competent advisory body argued in favour of the stricter Belgian legislation and pointed out that lowering the requirements on fat and egg yolk implies that additives such as water, milk and sugar as well as preservatives may be added, which leads to a mayonnaise of inferior quality. However, in the summer of 2015, the issue was raised again and the Minister for Consumer Affairs reconsidered the legislation.

Summary

This chapter examines specific forms of reverse discrimination from two national perspectives, specifically from the Belgian and German perspectives. In particular, it examines the grounds on which national authorities decide whether to remedy the specific form of reverse discrimination at stake or not. First of all, these forms of reverse discrimination may be assessed in the light of the national rules on the division of competences. Secondly, specific situations of reverse discrimination may be assessed in the light of internal free movement within a federally structured Member State. Thirdly, as in ‘classic’ cases of reverse discrimination, the principle of equality, as enshrined in national law, comes into play. Finally, it should be added that national authorities do not always assess a situation of reverse discrimination on the basis of national law, but sometimes – incorrectly – on the basis of Union law.

In Belgium, the debate around reverse discrimination in a federal State context started with the case of the Flemish Care Insurance. Chapter 6 discussed the ECJ's Flemish Care Insurance judgment. This chapter will discuss the Belgian sequel, in particular the judgment of the Belgian Constitutional Court of 21 January 2009. The Flemish Decree was questioned in the light of the principle of equality, the principle of internal free movement and the rules on the internal division of powers. Actually, this case touches upon all the problematic aspects of a specific form of reverse discrimination in a federal State context. The Belgian Constitutional Court's judgment will be discussed in detail in Section 1 below because this argument was decisive for the Belgian Constitutional Court and further reference to the judgment will be made in Sections 2 and 3.

NATIONAL RULES ON THE INTERNAL DIVISION OF COMPETENCES

THE BELGIAN CONSTITUTIONAL COURT'S JUDGMENT ON THE FLEMISH CARE INSURANCE

In its judgment of 21 January 2009, the Belgian Constitutional Court reproduced the distinction that the ECJ drew between people who work in the Dutch-speaking region or in the bilingual Brussels-Capital region, but who live in the French - or German-speaking regions, depending on whether or not they have made use of the right to free movement within the EU.

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Contents

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Chapter I - Introduction

Summary

Chapter III - The Challenges for and Alternatives to the Current Privacy Paradigm

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Frontmatter

Privacy as Virtue

Miscellaneous Endmatter

Chapter IV - Developing an Alternative Privacy Paradigm through Virtue Ethics

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Chapter II - The Transformation of the Right to Privacy and the Right to Data Protection

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Chapter V - Embedding a Virtue-based Approach in Privacy Regulation

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Chapter VI - Conclusion

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Conclusion Part II

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Chapter 6 - Union Perspective on Reverse Discrimination in a Federal State Context

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Part III - Reverse Discrimination in a Federal State Context

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Frontmatter

Conclusion Part III

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Chapter 5 - Reverse Discrimination of Persons

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Chapter 4 - Reverse Discrimination with Respect to Goods

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Bibliography

Chapter 7 - National Perspectives on Reverse Discrimination in a Federal State Context

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