Chapter I - Introduction

Summary

There seems to be an increasingly wide chasm between technological developments and the juridical paradigm. The juridical paradigm is focused on individual, subjective rights and personal interests, while new technological applications such as Big Data and mass surveillance do not revolve around the individual per se. The individual and individual interests are only incidental to these types of data analytics. These processes thrive on data sets about large groups of unidentified persons, from which statistical correlations and patterns are distilled. They can serve as a basis for data controllers to develop general policies and make decisions which have a significant impact on society.

This book will show that the legal privacy paradigm did not always focus on subjective rights and individual interests to the extent that it currently does. Rather, the focus was on duties of care for data controllers and states not to abuse their power, and on protecting general, societal interests. The turn to subjective rights and individual interests, a turn which is by no means exclusive to privacy and data protection, was seen as a sign of progress. Individuals could invoke rights themselves before a court of law if they were under the impression that their interests had been harmed. The shift from general obligations for data controllers to subjective rights for natural persons, and from a focus on general, societal interests to a focus on personal interests, was aimed at strengthening the position of the individual. The paradox, however, is that it is precisely due to the focus on subjective rights and personal interests that the position of the individual and her interests are no longer adequately protected in the current technological paradigm. That is why this book will argue for a renewed emphasis on duties of care and general, societal interests, and develop an additional approach to privacy regulation by turning to virtue ethics.

The first signs of such a shift may already be witnessed in recent developments in the various juridical privacy and data protection frameworks. This book will signal and explain those trends. Furthermore, it will develop a normative framework for this shift and the additional approach to privacy and data protection regulation that arises from that shift.