Global Data Market: threat or treat?

This thesis investigates the normative significance of data protection as a fundamental right in the European Union, starting from an analysis of its forefather right to life. The Lisbon Treaty elevated data protection to the status of fundamental right as this was recognized in Article 8 of the European Union Charter of Fundamental Rights (EUCFR) alongside the right to privacy (Article 7 EUCFR). However, the constitutional entrenchment of this as a fundamental right next to privacy, albeit welcomed in general with enthusiasm, raised the question of whether something had actually changed. For this reason, the thesis explores the scope, the content and the capabilities of data protection as a fundamental right to resolve the problem and to provide for effective protection. More in details, the thesis brings clarity to the concepts of privacy and data protection and considers the differences between them. It situates data protection in the context of EU constitutionalism and human rights law by paying attention to its initial conception as a factor that would permit the free movement of data rather than a fundamental human right. It examines the foundational values and aims of the fundamental right to data protection and argues that these transcend privacy. In the second part, it is examined the jurisprudence of the European Court of Human Rights and the Court of Justice of European Union on the right to data protection. In fact, the ECHR in a series of Judgment, as for instance the Schrems or Digital Rights Irelanad cases, have recognized data protection as an aspect of the right to private and family life found in Article 8 ECHR. Data Protection has been the subject-matter of a rich case law of the CJEU even before it constitutional entrenchment as a fundamental right by the Lisbon Treaty. However, the Court’s Jurisprudence regarding data protection has significantly developed since that point. In fact, if in a first period the Court was not able to distinguish data protection as a fundamental right distinct from privacy, it subsequently started to distinguish the two rights. In conclusion, starting from the seminal decision in Shrems that invalidates the Safe Harbour Scheme, the thesis focuses on the Internet Data Surveillance undertaken by the US intelligence authorities as revealed by Edward Snowden. In this final part, it is addressed also the core question of whether and how the fundamental right to data protection can have a normative significance and whether it could be considered solid enough to stand alone.