Comparing Constitutional Privacy and Data Protection Rights within the EU

Although both data protection and the right to privacy are recognised within the EU Charter, they are otherwise generally considered to have very different constitutional histories. The right of privacy is often seen as traditional and data protection as novel. Based on a comprehensive analysis of rights within EU national constitutions, this article argues that this distinction is overdrawn. While only five current EU States explicitly recognised a constitutional right to privacy prior to 1990, approximately three quarters of them do so today, as does the European Convention of Human Rights. Subsidiary constitutional rights related to the home and correspondence but not reputation are long-standing, and this helps link the core of privacy to the protection of intimacy. Constitutional rights to data protection emerged roughly contemporaneously and were often linked to a general right to privacy but are still only found in around half of EU States. There is also no clear consensus on specific guarantees and concomitantly data protection's core additional value as a separate constitutional reality, although around half of the EU States which recognise these include transparency and a slightly lower number rectification rights. This could suggest that data subject empowerment over a wide range of connected information is an emerging particularity tied to data protection as a constitutional guarantee.