The right to privacy is a highly developed area of law in Europe. All the member states of the European Union (EU) are also signatories of the European Convention on Human Rights (ECHR). Article 8 of the ECHR provides a right to respect for one's "private and family life, his home and his correspondence," subject to certain restrictions. The European Court of Human Rights has given this article a very broad interpretation in its jurisprudence. In 1981 the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data was negotiated within the Council of Europe. This convention obliges the signatories to enact legislation concerning the automatic processing of personal data, which many duly did.
In order to understand the Directive, it is necessary to understand how and why EU and US perspectives on data protection and privacy are different. The United States prefers what is called a 'sectoral' approach to data protection legislation, relying on a combination of legislation, regulation, and self-regulation, rather than overarching governmental regulations.[1] Former U.S. President Bill Clinton and former Vice President Al Gore explicitly recommended in their “Framework for Global Electronic Commerce” that the private sector should lead, and companies should implement self-regulation in reaction to issues brought on by Internet technology.[2] To date, the US has no single, overarching privacy law comparable to the EU Directive.[3] Privacy legislation in the United States tends to be adopted on an “as needed” basis, with legislation arising when certain sectors and circumstances require (e.g., the Video Protection Act of 1988, the Cable Television Consumer Protection and Competition Act of 1992, and the Fair Credit Reporting Act). Therefore, while certain sectors may already satisfy the EU Directive, at least in part, most do not.[4]
The reasoning behind this approach probably has as much to do with American laissez-faire economics as with different social perspectives. The First Amendment of the United States Constitution guarantees the right to free speech.[5] While free speech is an explicit right guaranteed by the United States Constitution, privacy is an implicit right guaranteed by the Constitution as interpreted by the United States Supreme Court.[6]
Europeans are acutely familiar with the dangers associated with uncontrolled use of personal information from their experiences under World War II-era fascist governments and post-War Communist regimes, and are highly suspicious and fearful of unchecked use of personal information.[7] World War II and the post-War period was a time in Europe that disclosure of race or ethnicity led to secret denunciations and seizures that sent friends and neighbors to work camps and concentration camps.[8] Europe has experienced atrocities directly related to privacy and the release of personal information inconceivable to most Americans. In the age of computers, Europeans’ guardedness of secret government files has translated into a distrust of corporate databases, and governments in Europe took decided steps to protect personal information from abuses in the years following World War II.[9] Germany and France, in particular, set forth comprehensive data protection laws.[10]
