European Data Protection and the Haunting Presence of Privacy

González Fuster, Gloria [Vrije Universiteit Brussel] Bellanova, Rocco [FUSL]

Since it first appeared in the 1960s, the legal notion of personal data protection has been living in the shade of the term privacy. Whereas in the United States (US) the regulation of the processing of information related to individuals was solidly framed under the privacy tag as early as the beginning of the 1970s, European legal orders were witnessing the emergence of concurring labels. Eventually, a genuinely European legal construct was to see the light of day: personal data protection, now recognised as a specific fundamental right of the European Union (EU), formally different from any right to privacy.At the core of the construction of the notion of personal data protection there is an attempt to steer clear of the private v. public distinction, on the grounds that the boundary between private and public, as well as any traditional conceptualisations of privacy in terms of intimate or private space, had been rendered inoperative by emerging technologies - concretely, by automated data processing. The notion of personal data protection proposed to structure reality from a different perspective, based on the distinction between personal and non-personal - terms that European data protection laws were soon to define for their own purposes. Almost 50 years after its genesis, European personal data protection still appears to be strikingly intertwined with the evolving notion of privacy. This contribution examines European data protection from the perspective of its relation(s) with privacy, sketching out both the distance between the two notions and their different entanglements. It devotes particular attention to the ongoing review of the EU data protection legal landscape, which seems (finally) to be announcing a formal emancipation of personal data protection from privacy but is at the same time built upon (hidden) references to it. Between claims and silences, privacy thus continues to play a role in the shaping of EU data protection. The importance of such a role is described with the help of Jacques Derrida’s insights on the functioning of the word.