Privacy as virtue: searching for a new privacy paradigm in the age of Big Data

Abstract

Originally, privacy was conceived primarily as a duty of the state not to abuse its powers . It could not, for example, enter a private house without legitimate reason or reasonable suspicion that the owner of the house had engaged in, for example, criminal conduct . Gradually, however, privacy has been transformed into a subjec-tive right of the individual to protect his/her personal interests, such as related to human dignity, individual autonomy and personal freedom . Th e same counts for data protection, which originally focussed on laying down rules and obligations for data controllers to process data fairly, transparently and safely, and which has subsequently been mostly interpreted as an individual right to control personal data . 1 Th is transition has also infl uenced the manner in which specifi c cases are assessed . Originally, the prime focus was on the question of whether the use of power in the course of a privacy or data protection violation in relation to the pursuit of a societal interest, such as for example national security or the economic well-being of a country, was at all necessary and proportionate . Now, the societal interest and the personal interest involved with a specifi c privacy violation are balanced and weighed against each other . Th is shift from obligation to right, from societal and general interests to private and individual interests and from a necessity test to a balancing test has worked well for decades, as most privacy violations were targeted at specifi c individuals or small groups . However, in the current technological paradigm in which personal data are gathered, stored and processed on a very large scale, this paradigm is under pressure . Not only is it practically undoable for an individual to keep track of all data 1 See further: van der Sloot (2014): " Do data protection rules protect the individual and should they? "