Technological innovation requires more and more data. A need that must be balanced with that of the protection of personal rights, in a balancing act that involves everyone: regulatory authorities, large companies and ordinary citizens.
From the Twin Towers to Covid
The relationship between the right to protection of personal data and other rights is a “complicated relationship”, like any situation in which it is necessary to reconcile different interests.
The evolution of this right is a story of balancing with other rights and freedoms with which it has been compared over time, concretely taking on a different importance, depending on the context, circumstances and social sensitivity.
Balancing is often not only complex: it is a real challenge. It is enough to mention the two facts which, since the beginning of this century, have imposed this in a striking way: the attack on the Twin Towers and the Covid-19 pandemic. In 2001, after the terrorist attack on New York, sacrifice seemed inevitable in full a series of rights, first and foremost that of the protection of personal data, so that public authorities were able to guarantee the safety of individuals and the community. The challenge was to bring about a composition between the multiple interests at stake, which would allow the freedoms that characterize democratic societies not to be totally compromised.
The pandemic has also posed the challenge of ensuring the balance between health protection and different rights. Especially at the beginning, actions to combat the virus were proposed which would have involved massive digital tracking, with heavy intrusion into people’s legal sphere. But, thanks also to the interventions of the Privacy Guarantor, it was possible to balance the various interests involved. The measures that were gradually adopted were thus structured and evaluated on the basis of the general principles of transparency, proportionality and coherence between objectives pursued and tools used. Just think about the application for the contact tracing: the Guarantor authorized the Ministry of Health to start the processing of personal data through the “Immuni” app, judging it to be proportionate. In fact, “measures had been envisaged to sufficiently guarantee respect for the rights and freedoms of the interested parties”. However, “taking into account the complexity of the alert system and the number of subjects potentially involved”, the Guarantor also indicated “a series of measures aimed at strengthening the security of people’s data”. Also in relation to the digital green certification, the so-called green pass, the intervention of the Privacy Authority was essential. After the first critical observations on the legal basis for its introduction at national level, the Authority expressed a favorable opinion, provided that adequate guarantees were provided. For example, the clear identification of cases of displaying the green pass to access places or premises and the establishment of the purposes of the display itself with a primary law. In compliance with the conditions envisaged, the tool was deemed compliant with the principles of protection of personal data, guaranteeing among other things that the verifiers could «know only the personal details of the interested party, without viewing the other information present in the certification (healing, vaccination, negative result of the swab)”.
Over the years, balancing has become necessary in a series of different circumstances, more or less relevant – think, for example, of the Guarantor’s interventions regarding video surveillance systems or cookies and other tracking tools – always respecting an essential criterion: there are no tyrannical rights or absolute prerogatives. A compromise is always possible, and the complete sacrifice of one or the other legal position must be automatically excluded.
The challenge of technological evolution
This is the era of technological innovation. From the simplest to the most complex activities, technology is increasingly present. it is an essential factor of economic development, and data constitutes its lifeblood. New technologies require, in fact, an unprecedented level of data collection and processing, which is destined to undergo ever greater expansion with the applications of artificial intelligence.
In this scenario, the interests of digital economy companies and those of digital users intertwine and compare. The coexistence of such interests poses the challenge of balancing them. Businesses need data to develop, compete in the global dimension of markets, create profit for themselves and value for the country; users are willing to provide their data to make use of products and services offered online, but at the same time they demand its protection, to protect themselves.
In this work of composition, there is no need to ask the legislator to create new rights intended to operate in the online sphere. The fundamental freedoms and rights, protected by the Constitution and supranational charters, are designed and built in consideration of perennial needs, and resist in new dimensions, such as the digital one.
“A construction site always open”
The legislator has faced the challenge posed by technological innovation, balancing different interests, with recent European regulations. They show how wrong the idea is that the creation of value through the use of personal data is hindered by the protection of privacy: data can circulate, and be the subject of economic activities, without sacrificing its protection. Their greater sharing and use can be balanced with greater transparency, ease of exercising rights and guarantees for users.
A balancing act is constantly carried out by the Guarantor Authority, sacrificing to a minimum the economic activity of which the data constitute an essential factor and at the same time ensuring adequate protection for the subjects to whom those data belong. Companies must also operate a balance, for example in choosing the most appropriate legal basis for the processing of the personal data they intend to use, and in any case always comparatively evaluating their own interest with the rights and freedoms of the interested parties. Citizens must also do their part: the need to simplify their lives through apps of all kinds or the need to share moments via social media must be considered with full knowledge of the data that is given to third parties and the consequences that may arise from it .
In conclusion, the challenge of promoting the economic value of data must be faced in the awareness that they represent the digital projection of individuals, and therefore need to be adequately protected. As Stefano Rodotà stated in 2004, the protection of personal data is “a complex construction that we know is destined to never be entirely completed, immersed as we are in an uninterrupted technological and social dynamic that shows us an ever-changing future. We have entered a new world, the contours of which cannot be defined once and for all (…). Ours is truly a construction site that is always open, to which new materials are added every day.”
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