A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 72

“catalogue of individual liberties” against the deeds of others, be it other subjects,
or the state.
That is the reason why we consider it relevant to introduce the distinction
between substantial and regulatory human rights. From this perspective,
substantial human rights empower the subject by granting him/her one of the
individual liberties that constitute freedom in its positive sense, that is, centred
around the (possibilities of) actions of the individual. Hence, they are about the
substance, the content of one's freedom. Regulatory human rights on the other
hand, embody the logic of negative freedom and hence aim at regulating,
channelling the actions of others, so as to make sure they do not infringe upon,
and consequently respect, the freedom of the subject. 29 We are of the opinion that
such is the case for the rights to data protection and anti-discrimination. In both
cases their very aim consists of assuring that the actions of others remain within
boundaries that prevent them from infringing upon the freedom of their fellow
subjects (one by regulating all data processing operations, the other by making
sure that all actions respect the core principle of equality among citizens).
Consequently, the legal regimes of these rights should reflect their nature as
regulatory human rights. Is this the case? As announced at the end of the
preceding section, we believe that similar traits in both regimes we have
evidenced (cf. the bundle of subjective rights and the supervisory bodies) are
characteristic of this regulatory nature. By granting a bundle of subjective rights
and relying upon (administrative) supervisory bodies, they strive towards a
proactive judicial approach that aims less at sanctioning the violation of a right
than at preventing this violation from taking place. In doing so, they thus channel
and regulate the actions of others (precisely through the two means we have
evidenced: subjective rights and supervisory bodies).
29 Of course it might be argued that other rights do also have ex ante measures . For
instance, in the case of freedom of speech and expression, there exists some regulations
that ensure that the channels of expression are open, that guarantee the plurality of
political ideas on the media, or that protect the sources of journalists. However, we
believe that the two issues do not proceed from the same logic and thus need to be
distinguished. In the first case we are confronted with human rights that correspond to the
logic embodied by negative freedom, and thus the very aim of the latter is to guarantee
the freedom of the subject regarding the actions of others. Their primary aim is to make
the individual free from . In the second case we are facing measures that are encompassed
by what is known in human rights theory as positive obligations. Positive obligations
theory aims at guaranteeing that third parties do not violate a given substantial human
right (freedom of expression in our example), and thus aim at guaranteeing the enjoyment
of the right by its legitimate holder. Enjoying one's right indeed entails to some extent to
be free from these actions that will violate the right in question, and in that sense positive
obligations can be related to the logic underpinning negative freedom, since, ultimately,
one needs to be “free from” in order to be “free to”. However this does not affect the
validity of our analysis, according to which it is clearly possible to differentiate two types
of human rights. This distinction is not merely theoretical. For practical implications, see
supra , 4.5 and infra , 4.7 on how to simultaneously protect negative freedom from several
perspectives.