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situations where proper information is lacking (e.g., an employer uses skin colour
as a proxy for criminal records - however, if these records would be publicly
available the employer would not be forced to take recourse to racist heuristics.)
In other words, the more information a person knows the more enlightened his/her
choices will be, and thus the chances of undertaking a decision that bears
discriminatory consequences will be the lowest possible.
Such a position can probably be traced back to the views developed by Posner
in his seminal article The Right of Privacy (Posner, 1978), which argues that the
efficiency of economic transactions is enhanced by full disclosure of all available
information in order to avoid distasteful discrimination. When information is
concealed through privacy rights we are more likely to make the 'wrong' choices:
e.g. hire an employee who is an ex-convict or has a serious health problem. One
could therefore argue for full disclosure of as much information as possible.
This argument is, according to us, flawed. It sets the debate in the wrong terms,
as it seems to leave the choice between either total transparency or total privacy.
At this point it seems useful to remind that in the EU legal order, data protection
and privacy are two different rights, though very much interrelated. Whereas the
latter is about the intimacy of the individual and his/her self-determination (Gellert
& Gutwirth, 2012, Gutwirth, 2002), the former involves fairness, transparency and
legitimacy of the processing of personal data. 39 By default, data protection allows
for the processing of personal data, but only at certain conditions. These
conditions have been explained in the previous section: in addition to pursuing a
legitimate aim, the processing must be necessary and proportional to this aim.
Therefore, the point is more about determining the necessity and the
proportionality of a processing in view of the legitimate aim that consists in taking
a decision that bears no illegitimate discriminatory consequences. In this respect
one could eventually argue that the clash between the two rights could shift from
“privacy vs transparency” to a clash between two conceptions of necessity and
proportionality: a DP conception and an AD conception. However, this possibility
seems highly theoretical and improbable to us, not least because we have shown in
the Huber case that in order to determine the necessity of a processing, data
protection takes anti-discrimination issues into consideration. Therefore, it is
difficult for us to see how the rights would clash. On the contrary, it seems to us,
that the protection they afford to the individual is complementary: if the protection
afforded by one right is not sufficient, the individual can still seek for a protection
from the perspective of the other right. This could be the case in the future for
discriminations stemming from statistical profiling and thus based on no grounds
protected by anti-discrimination: in these cases, the discrimination could still be
tackled from the “art. 6 DP + general equality”-route.
39 Some of the data categorized as sensitive in art. 8(1) DP (race or ethnic origin, political
opinions, and religion or belief) overlap with the grounds prohibited by EU anti-
discrimination law. However, the provisions regarding sensitive data are no exception to
the rule of thumb that DP does concern the process and not the consequences of
processing. The only difference between the provisions on ordinary personal data and
sensitive ones is that the requirements legitimizing the processing of the latter are
somewhat stricter (art. 8(2) DP ). For an additional discussion on sensitive data, see
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