Daring to question the absolute primacy of personal data protection rights

?? Let’s dare to question the primacy of the right to the protection of personal data, and see what comes of it. A little pragmatism, perhaps, given that data protection is not absolute? Here’s my summary for the “too long; didn’t read” crowd:

(but really, read the whole article!)

– GDPR compliance is the justification for the interference with the fundamental rights to the protection of personal data and to privacy.

– When one fundamental right or freedom is used to interfere with another, a fair balance must be struck between the two rights or freedoms. Such a “fair balance” must ensure that the “actual substance” of the right or freedom is not affected and that compliance with that right or freedom is still assured in the “essential respects”.

– By focussing in its “Consent or Pay” Opinion 08/2024 on a particular version of a service (the “Free Alternative Without Behavioural Advertising”) that is not the one subject to the “appropriate fee” referred to by the CJEU in the Bundeskartellamt judgment, the European Data Protection Board could be said to be affecting the actual substance of the freedom to conduct a business.

– Nowhere in Opinion 08/2024 does the EDPB seem to leave any room for consideration by the organisation concerned as to whether such an alternative, so highly recommended by the EDPB, is commercially (un)viable. Proportionality is thus completely disregarded and the freedom to conduct business is sacrificed on the altar of the right to the protection of personal data.

– Properly taking into account the freedom to conduct a business might lead to a more pragmatic approach to data protection, one less reliant on absolutism and hopefully also more democratic.

Looking forward to comments and suggestions – but RTA carefully first and let’s be civil.