A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 68

contrast, anti-discrimination legislation concerns one 20 determinate legal
consequence (a breach of equality between citizens), no matter what action it
stems from. Data protection is, from this particular point of view, less contentious
than anti-discrimination. Indeed, data protection is about one particular operation
(the processing of personal data), the status of which is unproblematic. 21
Discrimination goes a step further because it does not regulate an action as such
(e.g., data processing), but a legal consequence of any actions (thus, also including
eventually data processing), which inherently entails operating a (legal)
qualification of the facts. While the question of what qualifies as data processing
might have some of its own legal intricacies, clearly, the question as to what
counts as an unwarranted discriminatory action is a more contentious one (cf.
supra, 4.3 and 4.5). Asking the latter question automatically entails operating a
legal qualification of facts.
It could thus be argued that in data protection, data subjects are more
empowered (and hence more autonomous) because of the inherently less
contentious nature of the type of actions they are concerned with. In contrast,
making an appeal to anti-discrimination law requires the intervention of a third
party endowed with the legitimacy to undertake the legal hermeneutics to decide
about the discriminatory nature of the consequences of the contested action.
Hence, the level of contentiousness, which is higher in anti-discrimination than in
data protection, could explain why subjective rights are ancillary in the former and
substantial in the latter.
However, the difference between the two sets of subjective rights may not be as
fundamental as it appears. A historical analysis of anti-discrimination legislation
could lead us to mitigate an overly essentialist understanding of the divide and
show the historical contingencies which gave rise to it.
To the extent that data protection can be traced back, be it in the OECD data
protection guidelines (1980), the Council of Europe Convention 108 (1981), or the
UN Guidelines concerning Computerized Personal Data Files (1990), it has
always existed as a set of 'Fair Information Practices'. 22 This is hardly the case for
anti-discrimination legislation, since it has not always featured such procedural
characteristics (including both subjective rights and supervisory administrative
structures). Indeed, much has been written on the changing approaches to the fight
against discrimination (Bribosia, 2008; Fredman, 2005, 2006). The first approach,
which can be qualified as an ex post (or post active) approach, consists in
prohibiting discriminations whilst correlatively foreseeing a judicial sanction
aimed at enforcing this ban. This is the classical human rights approach, which is
20 This needs to be mitigated, however, given the varying scopes of the different directives.
See supra , section 4.4.
21 However, there are some controversies regarding the definition of personal data. See,
Article 29 Data Protection Working Party, Opinion 4/2007 on the concept of personal
data.
22 That is, practices concerning fairness, transparency and legitimacy of the processing of
personal data. Some authors disagree on this point. For instance, Mayer-Schönberger
(2001) argues that the content of Data Protection legislation has undergone major
evolutions.