The Right to Informational Self-Determination: On the Edge of Public and Private

Abstract

The right to informational self-determination, as the authority of the individual to decide fundamentally for herself, when and within what limits personal data may be disclosed, was formulated by German jurisprudence and has become a model for many States as well as for European Law in general. It is seen as a necessary tool for maintaining a vibrant democracy, on the basis that privacy is an “integral part” of society. The basis for the judicial decision was the Kantian theory of the moral autonomy of the individual. This explains the close connection of judicial reasoning with human rights and their Public Law protection. At the same time, under Anglo-Saxon influence, a “property approach” to personal data that may become the object of transactions is developing. The “property approach” views personal data as a valuable commodity that can be the object of transactions and operations with other people through licenses. In practice, access to personal data has recently been increasingly provided as a counter performance (compensation) to contracts for the provision of digital content and in exchange for personalized services. The study shows that there are many interactions of public and private in the legal protection of data (information self-determination as a subjective public right requires the corresponding obligations of the State to be formalized, there is no unambiguous sectoral qualification of a person’s consent to data processing, the insufficiency of the principle of confidentiality by default before the potential for harm is noted). Analysis of the evolution of the data legal protection leads to conclude that the public/private distinction is gradually levelling off. It seems that the problem of the circulation and protection of personal data cannot be solved in a sector framework, but only comprehensively, without violating the traditional logic of public and private. This means that the right to information self-determination, due to its complex nature, can be regarded as a principle that has an inter-branch nature which extends to both the Public Law data protection and the implementation of subjective civil rights in this area.