Impulses for an Effective and Modern Data Protection System

• Author: Niko Härting - Jochen Schneider
• Position: Lecturer at the Freie Universität Berlin, founding partner HÄRTING Rechtsanwälte, Berlin - Honorary professor at the Ludwig-Maximilians-Universität München, founding Partner SSW Schneider Schiffer Weihermüller, Munich
• Pages: 195-202

Impulses for an Effective and Modern Data Protection System

2011

195

3

Impulses for an Effective and

Modern Data Protection System

by Niko Härting, lecturer at the Freie Universität Berlin, founding partner HÄRTING Rechtsanwälte, Berlin

and

Jochen Schneider, honorary professor at the Ludwig-Maximilians-Universität München, founding Partner SSW

Schneider Schiffer Weihermüller, Munich

© 2011 Niko Härting/Jochen Schneider

Everybody may disseminate this ar ticle by electronic m eans and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtained a t http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

This article may also b e used under the Creative Commons Attribution-Share Alike 3.0 Unported License, available at h t t p : //

creativecommons.org/licenses/by-sa/3.0/.

Recommended citation: Här ting/Schneider, Impulse für einen effektiven und modernen “Datenschut z”, 3 (2011) JIPITEC 195,

para 1.

Keywords: EU Directive on Data Protection; Private Sphere; Privacy by Design;Principle of Prohibition; Freedom

of Communication; Free Flow of Data; Sensitive Data; Transparency; Secrecy of Observation; Consent

Liability concept

A. Introduction

1 Since 1973 there has been a data protection law in

Sweden.1 Germany’s “Federal Data Protection Act”

- BDSG

2

dates from 1977. This was preceded, in as

early as 1970, by a data protection law for the Ger-

man Federal State of Hessen.3 The demand for pro-

tection was due to the menace emanating from “me-

chanical data processing”, the central systems and

    

fore as regulatory subject. By way of an anticipated

need for protection of a fundamental right, the in-

dividual was to be protected, within an initially nar-



in which this menace became reality (principle of

imposing a ban with permit reservation).

2 

regime at EU level in the form of directive 95/46/EC

dated 24 October 1995 “on the protection of indivi-

duals with regard to the processing of personal data

and on the free movement of such data”. Article 8 of

the EU Charter of Fundamental Rights affords “the

protection of personal data” the same level of pro-

tection as the Charter’s article 11 affords to freedom

of expression and information.

3

In the course of time, the BDSG has been amended se-

veral times. The aforementioned directive was sup-

plemented by directive 2006/24/EC dated 15 March

2006 on data retention and before that, on 12 July

2002, by directive 2002/58/EC on the processing of

personal data and the protection of privacy in the

electronic communications sector, which has also

been amended since then. It is safe to say that there

Abstract: A substantial reform of data protection law

is on the agenda of the European Commission as it

is widely agreed that data protection law is faced by

lots of challenges, due to fundamental technical and

social changes or even revolutions. Therefore, the au-

thors have issued draft new provisions on data pro-

tection law that would work in both Germany and

Europe. The draft is intended to provide a new ap-

proach and deal with the consequences of such an

approach. This article contains some key theses on

the main legislatory changes that appear both nec-

essary and adequate.