The Feasibility of Applying EU Data Protection Law to Biological Materials: Challenging ?Data' as Exclusively Informational

• Author: Worku Gedefa Urgessa
• Pages: 96-109

2016

Worku Gedefa Urgessa

96

2

The Feasibility of Applying EU Data

Protection Law to Biological Materials

Challenging ‘Data’ as Exclusively Informational

by Worku Gedefa Urgessa*

© 2016 Worku Gedefa Urgessa

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

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

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

Recommended citation: Worku G edefa Urgessa, The Feasibility of Appl ying EU Data Protection Law to Biological Mat erials:

Challenging ‘Data’ as Exclusively Inf ormational, 7 (2016) JIPITEC 96 para 1.

Keywords: Biological materials; DNA; interpretive framework; data privacy laws; data/information

city of sufficient explication of key terms like ‘data/

information’ in these legislations may fuel such ten-

dency whereby laws originally intended for the infor-

mational world may end up applying to the biological

world. The article also analyzes various predicaments

that may arise from applying data privacy laws to

biological materials. A focus is made on legislative

sources at the EU level though national laws are re-

lied on when pertinent.

Abstract: Though controversial the question

of applying data protection laws to biological ma-

terials has only gotten a little attention in data pri-

vacy discourse. This article aims to contribute to

this dearth by arguing that despite absence of pos-

itive intention from the architects to apply the EU

Data privacy law to biological materials, a range of

developments in Molecular Biology and nano-tech-

nology—usually mediated by advances in ICT—may

provide persuasive grounds to do so. In addition, pau-

A. Introduction

1

There were numerous reasons for enacting the

rst data protection laws in the 1970s. Among

the most important factors was a public fear

and disempowerment engendered by greater

dissemination, use, and re-use of personal data

across organizational boundaries facilitated by new

technology in the form of electronic data processing.

The latter has also created a sense of loss of control

over technology and automation of societal

processes.

1

In addition to rapidly increasing capacity

to store data, computers permitted information to

be searched and organized by multiple attributes,

rather than through a single index (for example,

rst and last name only). This capacity changed the

1 Lee Bygrave (2014), Data Privacy Law, an International

Perspective, Oxford University Press, Oxford p. 8-15; See

also, Article 29 Working Party, “Opinion 4/2007 on the

Concept of Personal Data,” Adopted on 20th June, 2007,

01248/07/ENWP 136, p.5. Recital 4 in the preamble to the

DPD makes a similar assertion.

way information could be linked to an individual2

which led to data protection laws focused on

protecting “personal data” in the EU and “Personally

Identiable Information (PII)” in the United States

of America.3 The denitions of these key concepts

delimit the scope of application of data protection

laws. Since those early days one of the major changes

in the EU has been the recognition of data protection

as a fundamental right in itself, independent from

the right to respect for private life.4

2

Today, more than 40 years since the early data

2 Paul Schwartz & Solove Daniel, “The PII Problem: Privacy

and a new Concept of Personally Identiable Information,”

New York University Law Review, Vol. 86, (2011), p. 1820.

3 The U.S., however, lacks a comprehensive set of data

protection rules as is available in Europe and relies instead

on sector specic rules. (See, Bygrave (2014), p. 110-12).

4 See Article 16 of the Treaty of the Functioning of the

European Union and Article 8 of the Charter of Fundamental

Rights of the European Union.