Balancing and weighing different rights and interests is one of the most common metaphors and tests adopted by judges, politicians and policy makes. For example, the right to privacy of A is balanced against the right to freedom of expression of B or when a new surveillance law is adopted, it is said that national security outweighs the right to privacy. Increasingly many people, however, have argued that the metaphor of balancing and weighing is misguided and even dangerous. My criticism of balancing also connects to the fact that I argue that privacy is not always/only an individual right and individual interest; there are aspects of privacy that cannot be 'outbalanced' by other interest. These aspects of privacy are minimum conditions of constitutional democracies and the rule of law.
In this essay, I deal with 10 questions:
1. What Is Balancing?
2. Should Balancing Be Used In the Legal Realm?
3. Do Legal Texts Themselves Speak of ‘Balancing’?
4. Is Balancing Inherent to the Proportionality Test?
5. Is There an Alternative to Balancing Interests?
6. Can ‘Balancing’ and Other Methods Coexist Side by Side?
7. Should Legal Disputes Be Determined on a Case-by-Case Basis?
8. Is Privacy an Absolute Right?
9. Are Not All Legal Principles Context Dependent?
10. Are Not All Factual Questions Context Dependent?
This essay started with an article by Raphael Gellert, my editorial on his approach and his response to that in EDPL. I've also invited Janneke Gerards and James Rule to discuss the notion of balancing in EDPL.
Download the essay here.
It is commonly believed that privacy cases are resolved by balancing the private interest (e.g. personal autonomy) and the common interest (e.g. national security) involved with a particular privacy violation. Clearly, this approach no longer holds in the age of Big Data, in which massive amounts of personal data are gathered without a pre-established goal. Not only is the balancing test inapplicable because it is often unclear how certain data gathering and processing initiatives improve the societal interest. It is also hard to demonstrate whether and if so how an individual has suffered from such massive data processing systems.
Besides the balancing test, however, the ECtHR applies two other tests when dealing with privacy issues. Both have an added value when applied to privacy violations following from Big Data processes. Still, if Article 8 ECHR is to retain its significance in the new technological environment, it might be necessary to develop a new test, the rudiments of which might already be found in the Court’s case law.
In the realm of privacy and data protection – as in the fundamental rights framework in general – balancing has become the standard approach for dealing with legal disputes. It comes, however, with a number of practical and theoretical problems. This article analyses
those problems and compares the method of balancing with the original approach of most
human rights frameworks, such as the European Convention on Human Rights. It does so by analysing two cases in detail: the European Court of Human Right’s case Delfi v. Estonia and the Court of Justice of the EU’s judgment Coty v. Stadtsparkasse. From this analysis, it follows that the concept of balancing signals a shift away from the deontological and towards a utilitarian understanding of fundamental rights. This is not only of theoretical importance, as it could also mean that in time, human rights frameworks as such might become redundant.
Download the article here.
This discussion (in Dutch) started with two colleagues that proposed to set the newly adopted GDPR aside and instead work with one principle: balance all interests at stake (those of the data subject, data controller, data processor, society, etc.). That would mean that all data protection questions (purpose, purpose limitation, data minimization, sensitive data processing, etc.) would be taken into account as well as the interests served by the data processing initiative.
Obviously, I disagreed with this approach, mainly because of their 'balancing' approach. While the authors argued that this would make things simpler for data controllers, I argued, to the contrary, that putting everything under one big balancing test would complicate matters and would mean that there would be no legal certainty.