The Way Forward - Discrimination and Privacy in the Information Society - page 340

19.4 The Future of Privacy and Data Protection
From a legal perspective, the right to privacy and personal data protection are the
main bulwarks against risks associated with data mining and profiling.
Technological developments influence our perception and notion of privacy. New
applications may limit the privacy of the individual and the processing of personal
data may entail risks for the individual. In a sense, the right to privacy and the
right to data protection try to re-erect barriers of access to the private sphere that
have been removed by the possibilities of the technology. An important function
of the right to privacy is therefore to regulate the use of technologies that can be
used to encroach upon the private sphere. Since technological developments raise
new questions on how to interpret the right to privacy, the legal framework for
privacy protection is in a constant state of flux.
Originally, the private sphere was made up of the home, the family life, and
correspondence. Mainly as a result of digitization, the private sphere has grown to
include personal data. As described in the introduction of this chapter, by
incorporating personal data into the private sphere, a new type of privacy
emerged: informational privacy. 27
An important aspect of informational privacy is personal data protection. Given
the growing importance of personal data processing in modern society, the OECD
set forth principles for the protection of personal data in 1980. 28 The goal of these
principles was not only to protect personal privacy but also to ensure that
disparities in national privacy laws would not lead to interruptions in the trans-
border flows of data. These OECD principles, together with the Council of Europe
Convention for the Protection of Individuals with regard to Automatic Processing
of Personal Data of 1981, formed the basis for the EU Data Protection Directive
(95/46/EC), which was adopted in 1995.
Since 1995 a lot has happened. In particular the advent of the Internet has led to
the massive proliferation and processing of personal data. It is estimated that the
average person is now registered in several hundred databases. 29 Apart from the
digital traces we leave behind on the Internet, we also leave more and more digital
traces in the physical world, through technologies like smartphones and RFID-
chips that enable geo-location and interaction with the Internet. As such, the
physical world and the 'virtual world' merge to an increasing extent. Augmented
reality, which enables us to enhance the physical world with a layer of digital
information, is a good example of this development. 30
The question is thus whether the current legal framework for data protection
is adequately suited to deal with these new technological developments and
applications of (personal) data. Because the Data Protection Directive is technology
27 See the Section 19.1 for Westin's definition of privacy.
28 OECD Recommendation of the Council concerning guidelines governing the protection
of privacy and transborder flows of personal data (23 September 1980)
29 Schermer & Wagemans (2009).
30 See Chapter 11.