Paul de Hert, Vagelis Papakonstantinou

European Data Protection Law Review, Jahrgang 9 (2023), Ausgabe 4, Seite 393 - 398

The digital world occupying large swathes of individuals’ lives in a trend that shows no signs of abating any time soon, the perennial question in human rights protection has been brought once again, forcefully, to the fore: do we need new human rights to deal with new societal and technological developments? Or are the ones already in place enough, complemented by recourse to the general principles of human rights, specifically to that of proportionality? Making use of the GDPR as a case-study in this regard, this paper elaborates upon the two, foreseeable, answers to this question. The first, within a digital constitutionalism context, suggests the introduction of new rights that will be suitable to protect individuals within the digital world. The second suggests that no new rights are necessary and that recourse should be made to the principle of proportionality instead. The choice by policy-makers between these two options will decide the future for the protection of individual rights in Europe. Keywords: GDPR, digital constitutionalism, principle of proportionality

Catherine Jasserand

European Data Protection Law Review, Jahrgang 9 (2023), Ausgabe 4, Seite 430 - 443

This article discusses whether the deployment of facial recognition technologies for surveillance and policing purposes is necessary in democratic public spaces, taking into account the tests of necessity as established by the European Court of Human Rights and the European Court of Justice in interpreting the limits to the fundamental rights to privacy and data protection. The article focuses, in particular, on the rules proposed by the European Commission in the future AI Act aimed at regulating the use of Remote Biometric Identification systems (RBIs). This generic term ‘RBI’ covers multiple biometric applications, including facial recognition technologies. In its legislative proposal, the European Commission proposed banning the live use of the technologies, except in three situations. The Council agreed with the proposal, while the European Parliament proposed to ban all uses by all actors, except the retrospective use by law enforcement authorities to prosecute specific serious crimes after judicial authorisation. Using the tests developed by the two Courts and the guidance of the European Data Protection Supervisor on necessity, the article assesses whether the proposed rules on RBIs stand the legal test of necessity. Keywords: FRTs, AI Act, law enforcement, necessity, proportionality

Sergio Guida

European Data Protection Law Review, Jahrgang 6 (2020), Ausgabe 2, Seite 262 - 264

Pieter Aertgeerts

European Data Protection Law Review, Jahrgang 6 (2020), Ausgabe 2, Seite 314 - 318

Case C-708/18 TK v Asociaţia de Proprietari bloc M5A-ScaraA, Judgment of the Court of Justice of the European Union (Third Chamber) of 11 December 2019 Article 6(1)(c) and Article 7(f) of the Data Protection Directive, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, does not preclude national provisions which authorise the installation of a video surveillance system installed in the common parts of a residential building, for the purposes of pursuing legitimate interests of ensuring the safety and protection of individuals and property, without the consent of the data subjects, if the processing of personal data carried out by means of the video surveillance system at issue fulfils the conditions laid down in Article 7(f). Articles 7, 8 and 52 of the Charter of Fundamental Rights of the European Union, Articles 6(1)(c) and 7(f) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Data Protection Directive) [1995] OJ L 281/31