Database Reference
In-Depth Information
Although data protection and anti-discrimination are both about the channelling
of the actions of others, they do so departing from two different perspectives:
whereas data protection focuses on one particular action, anti-discrimination
solely envisages a specific legal outcome (cf.
supra
, 4.3 and 4.5). One might then
ask whether the possibility exists that these two perspectives coincide. In other
words, whether there are potential overlaps between the two rights, that is,
whether the protection offered by the two rights might apply to one very same
action.
This will be the topic of the next section where we will examine the
potentialities of overlap.
4.7 Overlaps: At the Crossroad between Data Protection and
Anti-Discrimination
In this section we will examine the possibilities of overlap between data protection
and anti-discrimination through the lens of two cases. Both deal with the inclusion
of citizens in databases and the ensuing violation of rights.
What does this mean in practice? When we have a database in which personal
data are processed there are two ways in which this database can give rise to a
differential treatment: either the difference is made between those who are
included and those who are excluded (
inter
), or the differentiation is made within
the database (
intra
). For instance, an insurance company can decide that all the
persons in a certain database have to pay 50% higher fees compared to those who
are not (
inter
), or differentiate within (
intra
) a database by deciding that all
persons with attribute X pay 50% more than those with attribute Y. To further
explore these two situations we look at two recent decisions made by the ECJ:
Huber v. Germany
(2008), regarding a disadvantageous inclusion in a database,
and
Test-Achats v. Council
(2011), regarding gender differentiation of insurance
fees based on statistical profiling.
a.
Huber v. Germany (2008): disadvantageous inclusion in a database
There are many instances when one's presence in a database is disadvantageous
30
compared to those who are not included (see e.g. González Fuster et al. 2010).
This was the case in
Huber
(ECJ, 2008).
31
Clearly, the inclusion in the German
Register of Foreign Nationals (AZR) is disadvantageous as it increases the
likelihood of being suspected, falsely or correctly, of criminal activities. Hence,
the lawfulness of such inclusion in a database is dubious. Of interest to us, it can
be approached from both a data protection and an anti-discrimination perspective.
30
Not every inclusion in a database is necessarily disadvantageous - it might also clear a
person in some cases. See further on this issue
infra
, our discussion in section 4.8.
31
Cf,
supra
, 4.1. There are other examples such as the
Marper
case (ECtHR, 4 December
2008), where it was contested that the DNA sample of any arrested individual in the UK
was stored for an indefinite period of time in the National DNA Database, even if the
individual was acquitted or never charged.
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