The Right to Privacy—A Fundamental Right in Search of Its Identity: Uncovering the CJEU’s Flawed Concept of the Right to Privacy

• Published in: German law journal Vol. 20; no. 5; pp. 722 - 733
• Main Author: Pfisterer, Valentin M
• Format: Journal Article
• Language: English
• Published: Toronto Cambridge University Press 01-07-2019
• Subjects: Agreements; Charter of Fundamental Rights of the European Union; Concept formation; Court of Justice of the European Union; Courts; Data; Data integrity; data protection; Decisions; Human rights; Identity; Jurisprudence; Privacy; Retention; Right of privacy; Social networks; Supreme Court decisions; Surveillance; Validity; Europe; Canada; United States > US; Ireland
• ISSN: 2071-8322; 2071-8322
• DOI: 10.1017/glj.2019.57

Abstract
In recent years, the CJEU has impressively brought to bear the protection of the fundamental rights to privacy and protection of personal data as contained in the CFREU. The Court’s decisions in the
Digital Rights, Schrems, Tele2
, and
PNR
cases have reshaped the political and legal landscape in Europe and beyond. By restricting the powers of the governments of EU Member States and annulling legislative acts enacted by the EU legislator, the decisions had, and continue to have, effects well beyond the respective individual cases. Despite their strong impact on privacy and data protection across Europe, however, these landmark decisions reveal a number of flaws and inconsistencies in the conceptualization of the rights to privacy and protection of personal data as endorsed and interpreted by the CJEU. This Article identifies and discusses some of the shortcomings revealed in the recent CJEU privacy and data protection landmark decisions and proposes to the CJEU a strategy aimed at resolving these shortcomings going forward.