Balancing Personal Data Protection with Other Human Rights and Public Interest: Between Theory and Practice

• Main Author: Justickis Viktoras
• Format: Article
• Language: English
• Published: Sciendo 2020-06-01
• Series: Baltic Journal of Law & Politics
• Subjects: data protection rights; the conflict of this right with other human rights; balancing method; critics of balancing method; shortcomings of balancing
• Online Access: https://doi.org/10.2478/bjlp-2020-0006

The role of balancing in the development and application of European data protection is enormous. European courts widely use it; it is the basis for harmonization of pan-European and national laws, plays a crucial role in everyday data protection. Therefore, the correctness of a huge number of critical decisions in the EU depends on the perfection of the balancing method. However, the real ability of the balancing method to cope with this mission has been subjected to intense criticism in the scientific literature. This criticism has highlighted its imperfections and casts doubt on its suitability to optimize the relation between competing rights. Paradoxically, the everyday practice of balancing tends to ignore this criticism. The limitations of the balancing method are typically not discussed and are not taken into account when considering legal cases and solving practical issues. Thus, it is tacitly assumed that the shortcomings and limitations of the balancing method, which the criticism points out, are irrelevant when making real-life decisions. This article discusses the scope of this phenomenon, its manifestations, and its impact on the quality of data protection decisions based on the balancing method:sub-optimality of these decisions, their opacity, public dissatisfaction with the legal regulation, its instability and low authority The ways of bridging the gap between the practice of balancing and science and broader consideration by the practice of the shortcomings of the balancing method identified during scientific discussions are considered.