Privacy as personality right: why the ECtHR’s focus on ulterior interests might prove indispensable in the age of Big Data

Article 8 ECHR was adopted as a classic negative right, which provides the citizen protection from unlawful and arbitrary interference by the state with his private and family life, home and communication. The ECtHR, however, has gradually broadened its scope so that the right to privacy encroaches upon other provisions embodied in the Convention, includes rights and freedoms explicitly left out of the ECHR by the drafters of the Convention and functions as the main pillar on which the Court has built its practice of opening up the Convention for new rights and freedoms. Consequently, Article 8 ECHR has been transformed from a classic privacy right to a personality right, providing protection to the personal development of individuals. Apart from its theoretical significance, this shift might prove indispensable in the age of Big Data, as personality rights protect a different type of interest, which is far more easy to substantiate in the new technological paradigm than those associated with the right to privacy

Online tracking: Questioning the power of informed consent

Online tracking technologies have raised considerable concerns regarding privacy and the protection of personal data of users. In order to help users to regain control over their personal data, Europe has amended its ePrivacy directive towards an opt-in regime. There are however many open questions concerning its implementation, especially regarding the issue of informed consent. This paper explores how the new legal situation impacts on behavioral advertising practices via the storing and reading of cookies in the Netherlands. The results show that the majority of the surveyed parties involved in behavioural advertising do not inform users about the storing of cookies or the purposes of data processing of the subsequently obtained data, neither do they have obtained users' consent for the storage of cookies. We also found that the majority of users lack the skills and knowledge how to handle cookies. These findings critically question the wisdom of the informed consent regime which lies currently at the heart of Europe's ePrivacy directive. --Online behavioural advertising,profiling,cookies,informed consent,Do Not Track,ePrivacy Directive