A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 70

procedures. 27 This stance seems to be confirmed by the new draft Regulation on
Data Protection (25 January 2012) which includes provisions for the
accountability of the data controllers, provisions strengthening the powers of the
supervisory bodies. Its chapter dedicated to remedies, liability and sanctions,
contains an article on judicial assistance that is similar to what is provided by anti-
discrimination legislation (art. 73). 28
In conclusion, data protection and anti-discrimination legislation increasingly
turn to the same mode of operation. However, the comparison is not symmetrical,
due to reasons stemming from the different characteristics of the two rights at
stake. In the next section, we will therefore argue that this similarity in the legal
regimes of the two rights can be explained by their common nature, which we will
qualify as being regulatory.
4.6 Data Protection and Anti-Discrimination: Two Regulatory
Human Rights
In order to better understand the proposition according to which data protection
and anti-discrimination are human rights of a regulatory nature, it is necessary to
turn to the broader framework within which (all) human rights operate: the
democratic constitutional State. Contrary to political systems characterised by an
authoritarian ruler, the very aim of democratic regimes is to guarantee personal
freedom and self-determination while at the same time preserving order. This
regime is thus in constant tension, as it has to preserve simultaneously two
antagonistic values - individual liberty and order (Gutwirth 1998; De Hert and
Gutwirth 2008).
In order to realize this objective, democratic constitutional states have created a
political structure wherein power is limited and non absolute, and which resorts to
a double constitutional architecture. On the one hand, fundamental freedoms
empower citizens with a set of individual rights that limit and counterbalance the
power of the state. It is crucial to understand that human rights protect individuals
from the State insofar as they create a sphere of autonomy or self-determination.
On the other hand, the power of the State is subject to a set of constitutional rules
holding the government to its own rules and to a system of mutual checks and
balances. Furthermore, governments will be legitimate if and only if they can be
considered as an expression of the “will of the people” (i.e., representation
through elections) (De Hert and Gutwirth 2006).
Such architecture is thus not only based upon the assumption that citizens are
“indigenous” (they were already “there” before the state) and autonomous
27 See Article 29 Working Party Joint contribution to the Consultation of the European
Commission on the legal framework for the fundamental right to protection of personal
data, WP 169 adopted on 01 December 2009, or Opinion 3/2010 on the principle of
accountability, WP 173 adopted on 13 July 2010.
28 Also, on a national perspective again, the Belgian Act for the protection of personal data
contains a provision setting up a specific judicial procedure similar to the one concerning
anti-discrimination. However, no use has ever been made of it. See, Belgian Act on the
protection of privacy regarding the processing of personal data, article 14.