|
A
peer-reviewed electronic journal published by the Institute for Ethics and ISSN
1541-0099 25(2)
– October 2015 |
The Right to Our Personal Memories:
Informational Self-determination and the
Right to Record and Disclose Our Personal Data
by Gabriel
Stilman
Member of the Argentinian Association of
Philosophy of Law
Journal of Evolution and Technology - Vol. 25 Issue 2 – October 2015 - pgs 14-24
Abstract
The
right to informational self-determination has been widely recognized in many
legal systems. It is the right of people to choose freely under what circumstances
and to what extent they will expose information about themselves. So far, this
notion has served as a means for restricting the circulation of information. By
contrast, this paper argues that informational self-determination includes an informational-expansive
aspect: the power of the individual to actively process – primarily by recording, storing, and
eventually releasing to others - his/her personal information and circumstances.
Express legal recognition of this right, along with a proposed criterion of the
most affected person for cases involving overlapping claims to privacy, would assist
an immense
number of people who are subjected to abusive situations, violations, and
arbitrary actions.
Introduction
Privacy issues are a
topic of public debate and concern in every society that achieves a degree of
technological advancement. At the core of privacy anxieties is the danger that a
combination of technology and powerful actors poses to the freedom and dignity
of individuals. Addressing these concerns requires elaboration on the right to
privacy, its boundaries in light of technological developments, and its
interaction with other important rights.
Human dignity,
freedom, and autonomy have been identified as grounds for a right to privacy,
but privacy law has evolved disparately across countries to a point where
dissimilar issues are usually included in what is labeled privacy law. Notably,
there are different approaches between the United States, on one hand, and the
majority of Europe, Latin America, and Canada on the other. Whereas the US
Constitution contains no express right to privacy and the Privacy Act deals
only with data possessed by federal agencies, Europe, Latin America, and Canada
have laws that recognize such a right and, in many cases, create public
agencies charged with remedying privacy violations. Whereas the US courts understand,
and protect, the right to privacy largely in relation to personal decisions and
belongings (e.g., abortion, parental education, search warrants, etc.), in
Europe, Latin America, and Canada, privacy deals with protection of personal
information in the hands of government or private citizens.
A strong protection
of personal information (also known as personal data) is at the core of the European
and Latin American systems. This protection derives from a powerful idea
introduced by American legal scholar Alan Westin in 1967, and dubbed by the
German Federal Constitutional Court in 1983 as the right to informational
self-determination (informationelle Selbstbestimmung).
Westin defined privacy as:
The claim of
individuals, groups, or institutions to determine for themselves when, how, and
to what extent information about them is communicated to others. (...) [It is]
the desire of people to choose freely under what circumstances and to what
extent they will expose themselves, their attitude and their behaviour to
others. (Westin 1967)
In the words of the German Constitutional Court, it is “the authority of the individual to decide
for himself, on the basis of the idea of self‑determination, when and
within what limits facts about his personal life shall be disclosed” (Kommers 1989).
Many legal systems
have awarded explicit and constitutional status to this right. It is also enshrined
in international treaties on human rights such as the Charter of Fundamental
Rights of the European Union.1 In the United States, the issue
remains elusive, but I argue that the US Constitution contains provisions that
support the specific right that I describe as a necessary part of informational
self-determination, and that is the subject of this paper: the right to record
and disclose our own personal data.
Until now, the
right to informational self‑determination
focused on limitations of information processing by third parties regarding a
person: the “data subject” in contemporary terminology. In this sense,
informational self-determination seems to be a fundamentally
informational-restrictive concept. The restrictive component of the right, apparently
being of its essence, has remained unscathed from the genesis of the concept. It
was the focus when the traditional “right to privacy” was proposed by Louis Brandeis
and Samuel Warren in 1890, and is reflected today in the European Union legal
framework, which constructs the principle of consent by the data subject as a
first condition for allowing the processing of personal data by a third party.2 Brandeis and Warren popularized
the expression coined by Judge Cooley, which conveys the limitative,
restrictive, defensive, and even boundary‑like
role, regarding the eyes and attention of others, that has traditionally been linked
with this right: “the right to be let alone” (Brandeis and Warren 1890).
In this paper, I argue
that, in addition to limiting the processing of personal data by outsiders, the
right to informational self‑determination
includes a fundamentally proactive, though overshadowed, aspect, which I describe
as active, expansive, or positive. This proactive component pays particular
attention to the data subject’s right to process (primarily by obtaining and
recording) his/her personal information, and ultimately dispose of the most
personal sphere of autobiographical memories. This right includes the power to
record or collect data that he or she desires to document about him/herself, including
events that happen to him/her. It comprises a right to take pictures, shoot
videos, make audio recordings, record geolocations, record biometric information – including dynamic data such as pulse, blood
pressure, identifiable brain activity, etc. – and any other personal
attributes and circumstances susceptible to expression as information. This, in
turn, entails the right to allow others to do these regarding oneself, as with hiring
a photographer who follows a subject wherever he/she goes, or with tracking
devices that a company manages. During a second stage, it includes the right of
a subject to communicate recorded personal information to third parties or the public.
This facet of informational self-determination plays a role against abuses, arbitrariness,
and wrongdoings suffered by people in vulnerable situations, and it can be labeled
a right to our personal memories.3
The right of an
individual to the active and deliberate processing of personal information, including
its creation, pertains to the notion of a right to informational self‑determination, as both Alan
Westin and the German Federal Constitutional Court define it: a strong power to
control information about oneself. Affirming the right to record and disclose
our own personal data leads to a surprising conclusion: the chronic struggle
between personal data protection and freedom of speech becomes largely illusory.
Instead, there appears to be strong convergence of these rights, explicable as
an overarching right of people to register whatever they choose about
themselves, and disclose such information as they wish. How can freedom of
speech be protected if an individual is denied the power to tell (and record
and show) circumstances and events concerning his/her life? How is true freedom
of the press supposed to exist if people are forbidden being journalists of
their own realities? Understood this way, personal data protection and freedom
of speech are no longer polar; along some roads, they walk abreast, with informational
self‑determination providing common
ground.
The purpose of the
right to record and disclose our own personal data is not to foster the vacuous
exhibitionism existing around us, much less to infringe on others’ right to be
let alone where they have a legitimate and reasonable expectation of privacy.
Rather, it should be borne in mind that the most serious human rights
violations have occurred, and continue to occur, largely because victims have
been unable to document their circumstances, and have thus been doomed to an
unwanted invisibility.
In cases of arrest, detention, hospitalization, admission to mental health
centers, and generally in environments marked by a strong imbalance of power
among parties, the right to be left alone loses significance in comparison to a
legitimate interest in not being abandoned.
A party that
benefits, or potentially so, from secrecy is likely to object to a request by a
weaker party to keep accurate and full records of events. It is no coincidence
that the vehemence of the objection is in direct proportion to the technical
quality of recording technology, since it relates to a record’s value as
evidence. We live in a world in which millions of people who suffer daily
injustices, damage, negligence, and arbitrary exercises of power are unable to record
such events, even if they desire to do so. Consequently, they find it difficult
to prove the relevant facts and obtain redress. In addition to these injuries, the
systematic difficulty of gathering information about disturbing realities
hinders public debate and prospects for policy reform. It is clear that a right
to record and disclose
our own personal data in virtually all types of circumstances has not yet been given
adequate attention. Just as an educational campaign is necessary for citizens
to learn about and exercise their right to privacy conventionally, a similar campaign
is required to raise people’s awareness about proactive informational self‑determination, so it can
become one more of the rights people know they have, and to develop its full potential
to improve the quality of lives and institutions.
The right to be let alone and the right to our personal
memories as two sides of the right to informational self‑determination
Reviewing
the origins of the right to contemporary informational self‑determination, we can
see it was conceived as an eminently individualistic right, closer to the right
to private property than the right to equal human dignity. This close relation
between private property and privacy is not simply semantic; its repercussions
remain strong, and are the primary reason it is difficult to identify the substantial
consequences of the right to informational self‑determination when people are vulnerable.
It is not so much about preventing others from learning about our personal
circumstances, but about letting third parties know of them. For some people
and under some circumstances, power lies in the restriction or limitation of
disclosure of information. For other people and under other circumstances, that
power might exist only if the injured person is able to record and preserve
information regarding what happened. Thus, the right that I figuratively refer to
here as the right to one’s personal memories is the right of every person to
record data about him/herself and disclose that information to some people, or to
the public, as the subject decides.
Control
over one’s personal information remains the purpose of the right, but at this
level the objective is not to withhold or limit its flow but to keep it and
eventually release it for defense of substantive rights or other legitimate
purposes, among which preserving memories is not minor. The subject does not
take a reactive role adopted by someone who must defend him/herself against
third-party intrusions and processing of personal data; he or she pursues
processing of the data – particularly recording and collecting them
– and ultimately does so against the will of third parties, whose primary
intention is to hide information and keep others’ memories undocumented. From
this viewpoint, the current, paradigmatic judicial remedy resulting from the
right to protection of personal data in pursuit of access, rectification, or
withholding of a subject’s personal data – the habeas data –does not exhaust the right to informational self‑determination. It should
be supplemented by other actions directed to overcoming resistance in prisons,
health facilities, work environments, and administrative and judicial premises,
among others, to collecting one’s personal data and preserving autobiographical
memories.
The idea
that this right to personal memories is encompassed in the right to
informational self‑determination meets with objections. This
is unsurprising since the mindsets of privacy law advocates have been nurtured
so far by emphasis on restricting the use of personal data, not their
collection or dissemination. However, rejecting or fearing technology per se is not the essence of the right
to informational self‑determination, and nor is a culture of
secrecy inherent to such a right. Most importantly, profound reflection suggests
that the essence of privacy is not a boundary against knowledge or disclosure,
but a sphere in which each of us is the master of whatever is his or her own,
and in which we should each be afforded the greatest degree of control and
leeway. The sphere does not vanish when one engages in activities with other
people, even in public spaces. Nor does it cease to exist when somebody is
subject, whether by law, nature, or authority, to involuntary circumstances. Unwanted
situations make the sphere of privacy particularly deserving of protection.
Having
shown that the philosophical grounds of the right to privacy and informational
self-determination support a right to record and disclose personal data, I refer briefly to important legal
texts on the matter, which drive to the same conclusion.
Numerous
legal systems regulate the right to privacy through laws of personal data
protection. Although this protection of personal data usually evokes thought of
limitations and prohibitions regarding processing of data by third parties, the
term protection is sufficiently clear
and meaningful to include the right of an individual to record his/her personal
data. Nothing in personal data protection law prevents an individual from starting
to process information about him/herself. Indeed, one’s own recording of
personal data is the best way to protect it. In this context, protecting
personal data means preventing loss of irretrievable information regarding a
circumstance that can be represented in such forms as pictures, video, or audio.
For example, a person subject to an operation conducted by police – on the
street, at a police station, or elsewhere – might legitimately desire to
document what is going on as accurately as possible by recording the experience
audiovisually. The subject might want to do this for future disclosure or to
preserve a record of events. Anyone subject to medical procedures, anyone who
initiates a procedure before a state office or authority, anyone in the role of
consumer, an employee at work, or a parent who brings his/her minor children to
a daycare center or school has the same interest.
Even if
all these cases give rise to other, conflicting rights, I emphasize that among
them there is a right to informational self‑determination in its proactive form, and in
the interest of a subject involved primarily in the event. In subsequent sections,
I consider the criteria to solve potential clashes between the right to be let
alone and the right to our personal memories, and I refer briefly to technical
issues derived from this complex topic, particularly regarding data
dissociation.
Article
II‑67
of the European Constitution provides that “everyone has the right of access to
data which has been collected concerning him or her.” It is simple to deduce that
this right of access covers, impliedly but inevitably, the right to collect or
generate data related to him/her. Any datum is a symbol of a portion of
reality. Whenever this portion of reality refers to a holder of rights, it can then
be represented by personal data. According to the principle of free will, from
which the right to informational self‑determination derives, the right of a
subject to make a record that belongs only to him of his own circumstances in
terms of time, place, image, voice, mood, and any other personal circumstance,
to the extent permissible by technology, must be unquestionably and primarily
recognized.
The right
to process, record, and publicize one’s personal data impliedly arises from the
wording of an important legal decision from Germany. This is the Ruling of the
First Division of the German Federal Constitutional Court of December 15, 1983
mentioned above. The Court affirms what it calls “the authority of the
individual to decide for himself, when and within what limits facts about his
personal life shall be disclosed.” Other definitions confirm this approach. Informational
self‑determination
has also been defined as the “power every subject has to control personal
information about himself, contained in public or private records, in
particular, those stored through electronic media.” If in some situations third
parties are allowed to create such public or private records, the data subject
should likewise be able to make a self‑record of any information concerning him/her.
The right
to privacy, as construed by case law in the United States, along with freedom
of speech and the press enshrined in the First Amendment, supports the right to
record and disclose our own personal information. The
Free Press Clause protects the right of individuals to express themselves
through publication and dissemination of information, ideas, and opinions,
without interference, constraint, or prosecution by the government. This right
was described in Branzburg v. Hayes as “a fundamental
personal right” that is not confined to newspapers and periodicals.
Through
these considerations, we discover an underlying, logical reason for the four
pillars of the right to personal data protection, as understood in the European
system (i.e., access, rectification, update, and suppression of one’s data) and
supplemented by a fifth element: recording, creating, and documenting a
subject’s personal information. This element is implicit under the prevailing
scholarly interpretation of the right to
informational self‑determination. However, due to its
importance, it should be identified expressly.
Image rights and the right to personal memories
I discuss
image rights, since a component of them relates to the purpose of this paper.
These rights “address, ultimately, the negative and positive freedom of self‑exhibition that should be awarded to every
person and that may have a projection of gain to the extent the use of the
image results in direct or indirect economic benefits (advertising) for the
data subject or third parties” (Marquez and Calderon 2009). Following the same authors, the content of
image rights includes:
a) preventing the taking, appropriation, use, or
disclosure of images by third parties;
b) promoting the
appropriation, use, and broadcast of images, by the person him/herself or by
authorizing third parties for free (under some conditions);
c) promoting image
broadcasting, reproduction, and use for commercial or advertising purposes to
generate economic benefits and gains;
d) assigning third
parties the right to broadcast, reproduce, and use images for commercial or
advertising purposes in exchange for monetary consideration.
Paragraph
b) relates particularly to the proactive side of the right to informational
self‑determination.
However, the right to capture one’s own image for self‑exhibition has been
considered largely as a property right, typical of celebrities, or of people
who are not famous but perform in public. It does not entail a far-reaching
guarantee element as informational self‑determination does in safeguarding other
fundamental rights (e.g., honor, privacy, due process, defense at a trial, or equal
protection of the law; in other words, human dignity). Since the right to
informational self‑determination extends beyond the notion
of image rights, a right to personal memories appears better framed within the
scope of the former.
The myth: Protection of personal data versus technology
The
current mindset in privacy law presents technology as the primary enemy of the
right to informational self‑determination. However, simplifications
of this kind tend to be counterproductive. The right is inherently focused on
human dignity and free will. Together with the continuous progress of
technology – which is increasingly accessible to ordinary people –
this allows a refutation of the alleged privacy/technology opposition, at least
for a broad class of cases. Technology has the potential to aid common people
to exercise their right to proactive informational self‑determination in the
most comprehensive way that anyone might choose. It thus offers the possibility
of developing effective safeguards against stronger public and private players.
From this perspective, technology will be an ever-increasing ally to people in
their struggles against injustice, corruption, arbitrary actions, abuses, and
negligence. The fight will increasingly be based on the right of every person
to record and disclose some of his or her biographical events. Ultimately, this
is about making access to technology democratic: the overall struggle involves common
people against the arbitrary actions of public officers, consumers against
abusive practices by big companies, and elderly people against negligent
caregivers. All of them need more technology, not less. Their priority is to
record and transmit information to whomever they deem appropriate. Their
struggles are against invisibility, because being invisible oftentimes serve
the interests of powerful parties, allowing mistreatment, injustice, and
negligence to go unpunished.
However,
one simplification should not be replaced with another. It would be absurd to
ignore the already proven risks that all types of misused technology pose, and
the damage technology can cause. My purpose is not to object to justified
precautions against illegitimate processing of personal information by third
parties, but to elucidate a supplementary approach: technology as a resource that
can facilitate a human subject’s full exercise of his or her right to
informational self‑determination. The following section
includes examples of, and offers insights into, the deep challenges faced by
interpreters in pursuit of an appropriate balance of the rights at stake.
How can the right to personal memories be exercised
in practice?
A strong
right to autobiographical memories finds its primary practical realization
channel in technology. Technology gives rise to numerous conflicts that warrant
a response by the law. Soon, the high costs and impracticality of having a
third person record a video will yield to the increasing popularity of hands-free
devices that can be used by any person to shoot a video at any time. Devices
that facilitate audio recording, including recording telephone conversations,
will become more affordable, and thus they will no longer be the privilege of
large companies.
The
quality of life of a person on foot can improve if he or she preserves, and
ultimately transmits to third parties, constant signals about his/her
geolocation (e.g., for personal safety) and dynamic biometric data (e.g., for early
detection of heart attack). Technologies such as these will increasingly allow us
a significant say as to the format, means, and content of information that we choose
to capture about ourselves. Simultaneously, they will reduce the number of
potential conflicts of rights, thanks to selective image-capture techniques,
which facilitate the removal of images one does not wish to store or that cannot
be captured without others’ consent. Let us consider the possibility, available
to an inmate serving time in prison, of capturing and even publicly disclosing
images of his/her body, but not of his/her face or of other people. This
information can enable third parties to protect the prisoner’s physical
integrity and safety. As more effective technological tools become available to
facilitate dissociating someone’s personal data from
those of other parties in the vicinity, the right to record and disclose our own
personal information applies more widely. There will then be fewer grounds for
disputes resulting from its exercise. For example, if a patient could guarantee
to a surgeon that he or she would record images of only his/her own body during
surgery, without storing any third party’s
voice or image, there would be no reasonable basis to refuse to record the
surgery.
Without
attempting to exhaust the list, below are some situations in which the
proactive component of the right to informational self‑determination may have an
increasing impact. In each case, the wisdom of Carlos Cossio’s definition of law as a human behavior in its
intersubjective relationships is apparent (Cossio 1944). The difficulties that
await the interpreter will consist not only of judging the relevance of records
of our own data that incidentally include information of third parties, but
also the extent to which the information is subject to subsequent processing.
This will force us to inquire into the purpose of any such processing and into other
issues that I cannot develop on this occasion. The multiplicity of relevant
interests – particularly in fields where the boundaries of what is
possible are pushed daily – forces us to emphasize the tentative nature
of whatever lines are drawn and to elaborate on them with time, prudence, and
deliberation.
1. Healthcare and medical procedures
The
proactive aspect of the right to informational self‑determination entails a patient’s
authority to shoot video or audio record the entire experience during
interactions with healthcare personnel or institutions. This, however, can
never be asserted as an absolute principle. The weight of this right, when it conflicts
with others such as the right of healthcare personnel to their own informational
self‑determination,
is contingent on a patient’s vulnerability and the potential significance of
the record the patient desires. In the context of surgery performed under
general anesthesia, the right of the patient to record the procedure, even if
it entails incidental capture of third-party information, carries more weight
than a simple physician’s examination.
2. Labor relations
The
proactive aspect of the right to informational self‑determination means that all people have
the right to film themselves while they perform duties in the workplace, and record
at least statements made by them. Considerable restrictions could derive from a
company’s right to keep information confidential such as commercial, industrial,
or financial secrets, and naturally from the right to informational self‑determination of third
parties. To illustrate the realities involved, reference should be made to the
increasing number of legal proceedings that can be heard in the United States,
which are more successful now than in the past, in cases of discrimination at
work. This progress is because it is lawful in most states for employees to
capture on film or by audio libelous or injurious statements uttered by
employers or supervisors.
3. Business‑consumer relationships
All people
should be afforded the right to make a video or audio recording of themselves
in the framework of consumer relations. Since most consumer transactions occur
in public spaces, the right to record an interaction between a consumer and business
for the purpose of potentially submitting the recording to a court does not appear
to be subject to valid limitations, particularly if the technology removes data
that could identify a company’s personnel. In this sense, the limitations to
the right appear less substantial than restrictions that can be justified in,
for example, the context of the workplace.
4. Police operations
All people
should be afforded the right to make video or audio recordings of themselves
during police operations in which they are involved. This right might become merely
theoretical to the extent that it falls within an overarching right: that of
any person to make a video of police procedures since they are public,
administrative acts.
5. Public administration
Informational
self‑determination
includes a right to record the circumstances surrounding interactions with public
officials, both by capturing images and recording conversations. Again, the
selective image capture technique will lay the foundation for a broad criterion
to assert the right, since it enables the individual to record the
circumstances in which he or she is interested, without violating the privacy
of public officials.
6. The prison system
Imprisoned
people should be given the possibility to film circumstances surrounding their
detention and custody, whenever and wherever they wish, and even the
possibility of disclosing such records in any way they consider fit. Security
reasons, if any, might curtail such rights, which will also find a limitation
in the privacy of the remainder of inmates who may not wish to be recorded. However,
if conflicts exist regarding the right to informational self‑determination of
officials in charge of penitentiary facilities, the rights of prisoners should
prevail. Their evident vulnerability, including a high degree of control over
their lives under conditions that have frequently been considered illegal by
court rulings and human rights bodies, tips the scales in their favor.
7. Educational institutions
Subject
to a major restriction resulting from rights of third parties, particularly
other students, to their own informational self‑determination, the principle that should
prevail is the right of any person to record, to the fullest extent possible,
the conditions surrounding their attendance at an educational institution. In
the case of minors, this right is exercisable by parents and guardians.
Restrictions and criteria for the right to informational
self‑determination
in its proactive form
The limit
to the right must be a different right or the same right held by others. We
should recognize the right in contexts where
an individual is typically subjected to restrictions on the possibility of
using image capture and/or audio recording technologies (e.g., the prison
system, medical procedures, educational institutions, and administrative and
judicial agencies). Recording should be allowed to the extent it applies to the
right‑holder
him/herself, and provided there are no valid reasons to disallow it. Some
criteria should be applied to settle conflicts between different rights, or where
the same right is exercised by more than one person, weighing the intensity of
legitimate interests that might clash. I propose three principles to be
employed as appropriate criteria: the principle of vulnerability, the principle
of equity, and the principle of the most-affected person.
1. Vulnerability
The
weaker or more vulnerable the person is in the circumstances, the greater the
weight that should be given to his/her right to proactive, informational self‑determination. Vulnerability
here denotes the likelihood that a subsequent, illegitimate violation of rights
could occur in connection with a person, or the fact of the violation having
already occurred. The likelihood should be examined in light of experience, or
the insight that should be reasonably inferred from circumstances.
For
example, when an individual is unable to express his/her will, it will be more
pertinent to conclude that he or has given tacit consent to recording of relevant
actions by more powerful agents. In cases where police officers or health officials
commence a procedure that involves a person who is not in a position to express
his/her will, the authorities could even have a duty to film the procedure, and
afterwards deliver the records to the person involved, his/her legal
representatives, or the person’s successors. Public debate could be useful to
determine a default provision (with an opt-out option) for recording events
like these.
2. Equity and a brief digression about recording
telephone conversations
The
equity principle suggests that the data subject should have more latitude to
exercise the right to informational self‑determination if his or her counterpart in
a transaction already processes information related to him/her. If a company,
agency, or institution were to use film or audio systems to gather information
on a person, that person should be able to reciprocate. The person’s right to
informational self‑determination should then be interpreted
with the broadest scope, permitting the recording of not only the circumstances
strictly affecting him/her, but also surrounding circumstances that might be
relevant.
Analyzing
whether it is lawful for a person to record a telephone conversation without
the consent of the other party goes beyond the scope of this paper, though it
is relevant to my concerns, and I will make a side comment on it. An
interesting example is the United States, where a number of states follow the
two‑consent
approach (i.e., both parties to a conversation must consent to the conversation
being recorded), but most states are one‑consent states (i.e., only one member of
the conversation needs to consent). Comparative law offers a wide variety of
approaches. In Argentina, prestigious legal scholars and case law subscribe to
the stricter system (i.e., two‑consent), and consequently, any recording
of a telephone conversation recorded without the consent of one of the parties
is deemed inadmissible as evidence (Kielmanovich 2009). The basis for this
position is that a telephone conversation is, in principle, not meant to be
disclosed, and takes place on the understanding that it is private.
The
principle of equity applies where one party is already recording an interaction
such as a telephone conversation. When this occurs, the conversation has been divested
of any expectation of privacy by one of the parties – generally the more
powerful one. This reinforces the right of the other party – generally
the weaker of the two – to assert the right to informational self‑determination broadly
and proactively. This can include recording such circumstances as actions or
words addressed to him or her. The equity principle helps to show that if one
of the parties has removed the privacy expectation, this expectation cannot then
be invoked to the other party’s detriment.
3. Toward the most-affected person criterion
If
personal data is difficult to define, establishing who is entitled to control
pieces of information containing data about more than one person is even more
complex. The object of my memories, to which I have a right, can overlap with
the object of the memories of others, to which they have rights. This poses a
profound challenge when it comes to asserting the right to informational self‑determination. Personal
data means “any numerical, alphabetical, graphic, photographic, acoustic or
other information relating to an identified or identifiable natural person,” but
the same data often refer to more than one individual.4
Let us consider
a surgeon who operates on a patient, assuming that the procedure is video-recorded
by the healthcare institution and the patient later requests access to his/her
personal data that appear on the video. The health center might argue that it
cannot provide the information requested, since it also contains personal information
of a third party – the surgeon – who did not consent to disclosure.
For the purposes of the example, let us imagine that the video shows only the
surgeon’s hands, not the rest of his/her body or voice. The patient insists
that the material be released, but the hospital refuses. At this point, the proposed
criterion of the most-affected person comes into play, giving the right to the
patient to have access to the video. This principle establishes that in cases in
which there are personal data about more than one individual and the
information cannot be reasonably dissociated, but one of the parties involved
is the person primarily affected by the procedure or situation, this party
should have the same access rights as if the personal data referred exclusively
to him or her. The most-affected person will have a priority right to record or
collect personal data even when the information could incidentally include
third-party data that are not sufficiently significant. The high significance
of an event for an individual makes the event part of the autobiographical
memories that he or she is entitled to preserve and dispose of.
Analysis
should always take into account the intensity of the legitimate interests of
the most-affected person, and his/her real or prospective vulnerabilities. An
unlawful beating of an inmate by a prison guard might be of high significance to
the guard, and even considered by him or her a relevant part of his/her
biography. However, the principles outlined here forbid the guard to invoke a right
to personal memories as a means to prevent
the inmate recording and disclosing the beating.
The
notion of the most-affected and vulnerable person justifies that, in
educational institutions, the younger the children are the stronger the case is
for allowing their parents to make video recordings of them, even if the videos
also include images of teachers. Symbolic representations in the form of data
of the actions taken by third parties surrounding the most-affected and
vulnerable person are personal data of the latter, and of the greatest importance.
Thus, going
back to the operating room example, if a surgeon says, “We are losing the
patient,” the surgeon’s statement is part of his/her personal data, but is also
the patient’s personal data since it undoubtedly refers to the patient. Even
the surgeon’s physical movements, to the extent they are intended to perform
the operation, are personal data of both the surgeon and of patient. Still, since
the patient is the most-affected and vulnerable person in this circumstance, the
right to informational self‑determination should be granted to him or
her.
Granting
the right to record and disclose personal information to the most-affected and
vulnerable person in circumstances in which other people are also involved would
not require automatically authorizing subsequent processing (e.g., divulging) of
the information as if it were exclusively personal data of the most-affected
and vulnerable person. Since some records might also contain third parties’ relevant
or sensitive information, requirements for transfer or dissemination might be limited
to the defense of substantial interests before administrative or judicial
authorities. In that respect, reference should be made to the flexible spirit
of the European Union Directive regarding the processing of data:
Personal data may be
processed only if … processing is necessary for the purposes of the legitimate
interests pursued by the controller or by the third party or parties to whom
the data are disclosed, except where such interests are overridden by the
interests for fundamental rights and freedoms of the data subject.5
The final
words of this – concerning overriding fundamental rights and freedoms
– provide the best guidance for when, and to what extent, a person can
exercise his/her right to informational self‑determination in its proactive form when
others possess conflicting rights.
Conclusion
A long
time has passed since Brandeis and Warren wrote about the right to be let alone.
Since then, this complex area of law has undergone an extraordinary evolution,
and today it encompasses a number of topics such as the right to privacy,
technology, freedom of expression, and the right to make oneself known or
unknown. At all times, human dignity was the core that shed light over all inquiries
and developments, and it should continue that way.
This
paper proposes one more step toward comprehensive respect for informational
self-determination. I am aware of both the controversial potential of the
outlined hermeneutics and the vast reality this topic touches on, from
quantitative (millions of people who would like, if possible, to record what is
happening to them) and qualitative (the importance, or rather seriousness, of
what is happening to these people) perspectives. In this spirit, I postulate
the proactive aspect of the right to informational self‑determination as the
right of any person to process his or her own personal data – including its
recording, collection, organization, transfer, and disclosure – to be legally
enforceable against a range of powerful actors. These include the state,
employers, business corporations, and educational institutions.
Aware of
the benefit that this would have for an immense number of people who are
subject to an array of abusive situations, violations, and arbitrary actions, I
call this proactive right the right to our
personal memories.
Notes
1.
Pursuant to Article 8 of the Charter of Fundamental Rights of the European
Union: “1. Everyone has the right to the protection of personal data concerning
him or her. 2. Such data must be processed fairly for specified purposes and on
the basis of the consent of the person concerned or some other legitimate basis
laid down by law. Everyone has the right of access to data which has been
collected concerning him or her, and the right to have it rectified.”
2.
Article 7 of the Directive 95/46/EC of the European Parliament and the Council of 24
October 1995 on the protection of individuals regarding processing of personal
data, and on the free movement of such data, states, “Member
States shall provide that personal data may be processed only if: (a) the data
subject has unambiguously given his consent; or…”
3. In this paper, personal and
autobiographical memories refer not only to facts that an individual knows
about himself or herself from having experienced them, but also to facts about
him/herself that an individual knows about at second hand, such as if they were
not conscious at the time of occurrence (e.g., after having fainted).
4.
Definition established by section 5 of Spain’s Royal Decree No. 1720/2007, de
21 de Diciembre, whereby the Regulations for the Development of the Law on
Personal Data Protection (Ley Orgánica de
Protección de Datos Personales) were approved.
5. EU Directive 95/46/EC
– The Data Protection Directive, Article 7, (f).
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