Personal electronic data protection : Europe. Chapter 4

• Author: Leani Marlie Van Schalkwyk
• Pages: 61-72
• Date: 01 January 2005
• DOI: 10.10520/EJC74042
• Published date: 01 January 2005

CHAPTER 4

PERSONAL ELECTRONIC DATA PROTECTION:

EUROPE

1. Introduction

Data protection in Europe and especially in the European Union is

a much-debated topic. The European Union realised that the pro-

tection granted by national privacy principles is in many instances

inadequate to protect information in an electronic society.This re-

sulted in the adoption of a number of Directives compelling member

states to review their national policies on data protection.

In this chapter the position in Europe will be considered with refer-

ence to the common law position as well as the Directives that

have been implemented into national legislative instruments.

2. Common Law protection of personal data

2.1 United Kingdom

The English position differs greatly from the law in the United States.

Winfield and Jolowicz281 mentions that an infringement of privacy

(which they discuss as a “doubtful tort”) may be described as some

form of interference with another’s seclusion of himself, his family

or his property from the public. The common law does protect this

right but does so in an indirect manner.282There is no direct decision

on the point that recognises any general right of privacy, although

extensive protection is given against harsh intrusions on the privacy

of a person’s property.

3. Statutory protection of information privacy

3.1 European Union

The general Data Protection Directive (General Directive) of the Eu-

ropean Parliament and of the Council283 on the protection of indi-

61

281 1989:555.

282 In a more recent judgement on this issue, that of Malone v Metropo-

litan Police Commissioner 1979 Ch. 344 where telephone tapping was

concerned, counsel for the plaintiff did not contend for a general right

of privacy.

283 95/46/EC.The formal name of the Directive is the “European Directive

on the Protection of Individuals with regard to the Processing of Personal

Data and on the Free Movement of such Data”.The Directive is avail-

able at http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!

prod!CELEXnumdoc&1g=EN&numdoc=31995L0046&model=guichett.