ABSTRACT
In this paper, Ralf Poscher addresses the question of what substantive freedom or interest the right to data protection is about. Drawing on German and European judgments on data protection and on theoretical conceptualizations of privacy, the author argues that data protection does not safeguard against actual violations (or at least a concrete danger of violation) of a particular liberty or interest, as fundamental rights usually do. Rather, data protection is concerned with potential and abstract dangers associated with the use of personal data that may lead to the violation of other fundamental rights, such as freedom of association or freedom of expression. On this basis, the author puts forward the thesis that the right to data protection is a preventive enhancement of other constitutionally guaranteed rights and freedoms. The adoption of such a conception of data protection leads to a more systematic approach than the one currently prevailing in Germany and Europe. This new perspective focuses not only on the collection of personal data, but takes into account the entire data processing system and its context.
Poscher, Ralf, Resubstantivising Data Protection Rights (September 5, 2025), Max Planck Institute for the Study of Crime, Security and Law Working Paper No 2026/03; published under a CC BY-NC-ND 4.0 licence in: Conceptions of Data Protection and Privacy: Legal and Philosophical Perspectives, edited by Elisa Orrù and Ralf Poscher, Hart Publishing, https://www.bloomsbury.com/uk/conceptions-of-data-protection-and-privacy-9781509983728/, pp 77-89.
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