Data Privacy and Dignitary Privacy: Google Spain, the Right To Be Forgotten, and the Construction of the Public Sphere

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming the “public opinion” that is essential for democratic self-governance. As the rise of American newspapers in the nineteenth and twentieth centuries demonstrates, the press underwrites the public sphere by creating a structure of communication both responsive to public curiosity and independent of the content of any particular news story. Google, even though it is not itself an author, sustains the contemporary virtual public sphere by creating an analogous structure of communication. With regard to privacy values, EU law, like the laws of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by the fair information practices contained in the Directive. These practices regulate the processing of personal information to ensure (among other things) that such information is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it seeks to endow persons with “control” over their personal data. Data subjects need not demonstrate harm in order to establish violations of data privacy. The second form of privacy recognized by EU law is dignitary privacy. Article 7 of the Charter of Fundamental Rights of the European Union protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate, or mortify them. Dignitary privacy follows a normative logic designed to prevent harm to personality caused by the violation of civility rules. There are the same privacy values as those safeguarded by the American tort of public disclosure of private facts. Throughout the world, courts protect dignitary privacy by balancing the harm that a communication may cause to personality against legitimate public interests in the communication. The instrumental logic of data privacy is inapplicable to public discourse, which is why the Directive contains derogations for journalistic activities. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. Because the Google search engine underwrites the public sphere in which public discourse takes place, Google Spain should not have applied fair information practices to Google searches. But the Google Spain opinion also invokes Article 7, and in the end the decision creates doctrinal rules that are roughly approximate to those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. It is impossible to ascertain whether the decision seeks to protect data privacy or dignitary privacy. Google Spain is ultimately pushed in the direction of dignitary privacy because data privacy is incompatible with public discourse, whereas dignitary privacy may be reconciled with the requirements of public discourse. Insofar as freedom of expression is valued because it fosters democratic self-government, public discourse cannot serve as an effective instrument of self-determination without a modicum of civility. Yet the Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. If it had more clearly focused on the requirements of dignitary privacy, Google Spain would not so sharply have distinguished Google links from the underlying websites to which they refer. Google Spain would not have blithely outsourced the enforcement of the right to be forgotten to a private corporation like Google

Entering the Mainstream: Making Children Matter in Immigration Law

Article published in the Fordham Urban Law Journal

The application of the theory of norms to the translations of international treaties : a case study of the Jordan-Israel peace treaty

EThOS - Electronic Theses Online ServiceGBUnited Kingdo

DRM and Privacy

Interrogating the relationship between copyright enforcement and privacy raises deeper questions about the nature of privacy and what counts, or ought to count, as privacy invasion in the age of networked digital technologies. This Article begins, in Part II, by identifying the privacy interests that individuals enjoy in their intellectual activities and exploring the different ways in which certain implementations of DRM technologies may threaten those interests. Part III considers the appropriate scope of legal protection for privacy in the context of DRM, and argues that both the common law of privacy and an expanded conception of consumer protection law have roles to play in protecting the privacy of information users. As Parts II and III demonstrate, consideration of how the theory and law of privacy should respond to the development and implementation of DRM technologies also raises the reverse question: How should the development and implementation of DRM technologies respond to privacy theory and law? As artifacts designed to regulate user behavior, DRM technologies already embody value choices. Might privacy itself become one of the values embodied in DRM design? Part IV argues that with some conceptual and procedural adjustments, DRM technologies and related standard-setting processes could be harnessed to preserve and protect privacy

A Competency Model for Judges

Throughout most modern and contemporary legal scholarship there appears an unbridgeable division between two dominant approaches to judicial decision making. Put succinctly, legal scholars argue that there exist either objective, foundational, ultimate groundings for legal theory and decisions or legal theory and practice inevitably follow a path to relativism and skepticism. This dissertation argues for a theory of evaluation grounded in the Pragmatic, practical ontology and epistemology. Grounding the theory in this fashion avoids the philosophical views of extreme objectivism and extreme subjectivism. In contrast to these conventional stances, which are rooted in philosophical dualism, the view argued for in this dissertation perceives the ontological and epistemological relationship between humans and their environment as inherently interconnected or relational. This philosophical relationship is characterized as intentional, perspectival, and dialectical and embodied. Consonant with the Pragmatic Ontology, the dissertation argues for a conception of rationality termed embodied reason. Unlike abstract versions of rationality, embodied reason is characterized by its concreteness, situatedness, and intersubjective validation. The theory clarifies the concept of legal reasoning and develops meta-theory underlining practical, expert based, holistic, narrative, argumentative, intuitive dimensions. Additionally, given the embodied and perspectival characteristic of judicial decision making the importance of individual differences, especially context-dependent, holistic thinking style is underlined

A semantic methodology for (un)structured digital evidences analysis

Nowadays, more than ever, digital forensics activities are involved in any criminal, civil or military investigation and represent a fundamental tool to support cyber-security. Investigators use a variety of techniques and proprietary software forensic applications to examine the copy of digital devices, searching hidden, deleted, encrypted, or damaged files or folders. Any evidence found is carefully analysed and documented in a "finding report" in preparation for legal proceedings that involve discovery, depositions, or actual litigation. The aim is to discover and analyse patterns of fraudulent activities. In this work, a new methodology is proposed to support investigators during the analysis process, correlating evidences found through different forensic tools. The methodology was implemented through a system able to add semantic assertion to data generated by forensics tools during extraction processes. These assertions enable more effective access to relevant information and enhanced retrieval and reasoning capabilities

Implications of transforming the Patient Record into a Knowledge Management System

In this paper I theorize about how transforming the interpretative scheme for what a patient record is might restructure a health care setting. The observations presented here were obtained when I during three years followed implications of constructing and computerizing a patient record at three different hospitals. The results were then analyzed and interpreted within a framework combining theories about knowledge management with concepts from structuration theory and cognitive theories about schema-use, representations and sense-making. The findings indicate that thinking about the patient record as a knowledge management system might start a horizontal and vertical movement, a movement of coordination and enhancement. I propose that what the employees want to achieve with the knowledge management system depends on what strategy they have for it.interpretative schemes; anesthesia patient record; knowledge management system; knowledge management; structuration theory