Privacy and Data Protection by Rules Rather than Principles

Tschentscher, Axel (7 August 2017). Privacy and Data Protection by Rules Rather than Principles (Unpublished) https://dx.doi.org/10.2139/ssrn.3013830

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There is hardly any field of the law that has more diversity on both sides of the Atlantic than privacy and data protection. Common opinion often reduces that diversity to a matter of "strong" protection in Europe versus "weak" protection in the United States of America. Discussions about Safe Harbor and Privacy Shield regulation reinforce this perception. This paper, however, argues that the privacy divide is hardly a matter of strong or weak protection, but has deeper roots in different approaches to constitutional rights. While Europe, following the lead of the German Federal Constitutional Court, conceptualizes legal precepts about privacy and data protection as principles with a broad protective scope that result in balancing procedures, the protection in the U.S. is rule based. This results in a more rigid system with stronger emphasis on the legislatures of the states rather than flexible adjudication by the courts.

Item Type:

Working Paper

Division/Institute:

02 Faculty of Law > Department of Public Law > Institute of Public Law
02 Faculty of Law > Department of Legal Theory and History of Law > Legal and Political Theory

UniBE Contributor:

Tschentscher, Axel

Subjects:

300 Social sciences, sociology & anthropology > 340 Law
300 Social sciences, sociology & anthropology > 320 Political science

Language:

English

Submitter:

Axel Tschentscher Emmenegger

Date Deposited:

27 Sep 2018 13:08

Last Modified:

24 Oct 2019 12:24

Publisher DOI:

https://dx.doi.org/10.2139/ssrn.3013830

JEL Classification:

K00

BORIS DOI:

10.7892/boris.120028

URI:

https://boris.unibe.ch/id/eprint/120028

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