The Social, Cultural, Epistemological & Technical Basis of the Concept of 'Private' data
In July 2008, the UK Information Commissioner launched a review of EU Directive 95/46/EC on the basis that: “European data protection law is increasingly seen as out of date, bureaucratic and excessively prescriptive. It is showing its age and is failing to meet new challenges to privacy, such as the transfer of personal details across international borders and the huge growth in personal information online. It is high time the law is reviewed and updated for the modern world.” Legal practitioners such as Bergkamp have expressed a similar sense of dissatisfaction with the current legislative approach: “Data Protection as currently conceived by the EU is a fallacy. It is a shotgun remedy against an incompletely conceptualised problem. It is an emotional, rather than rational reaction to feelings of discomfort with expanding data flows. The EU regime is not supported by any empirical data on privacy risks and demand…A future EU privacy program should focus on actual harms and apply targeted remedies.” Accordingly, this thesis critiques key concepts of existing data protection legislation, namely ‘personal’ and ‘sensitive’ data, in order to explore whether current data protection laws can simply be amended and supplemented to manage privacy in the information society. The findings from empirical research will demonstrate that a more radical change in EU law and policy is required to effectively address privacy in the digital economy. To this end, proposed definitions of data privacy and private data was developed and tested through semi-structured interviews with privacy and data protection experts. The expert responses indicate that Bergkamp et al have indeed identified a potential future direction for privacy and data protection, but that further research is required in order to develop a coherent definition of privacy protection based on managing risks to personal data, and harm from misuse of such information.
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