THE THEORIES OF PERSONAL DATA

1.      There are generally two theories of personal data, namely those who perceive personal data as protection of human rights and those who claim ownership over their personal data.

2.      Those who conceive of personal data protection as a fundamental civil liberty interest, essential to individual autonomy, dignity, and freedom in a democratic civil society (Samuelson, 2000), often view specific statutes and regulatory agencies to oversee enforcement as necessary to ensure protection of this interest (Dam, 2005).

3.      Therefore, duty is on the states to ensure that individual’s privacy is protected (Lim, 2002).

4.      In fact, the legal approach to privacy protection through human rights international treaty, such as the Universal Declaration of Human Rights 1948, was established before the rapid developments in ICTs (Boni & Prigmore, 2004).

5.      The European approach, in particular, sees privacy as a human right and thus cannot be traded away. 

6.      Hence, Article 1 of the EU Directive requires the Member States to protect the fundamental rights to privacy of individual with respect to the processing of personal data.

7.       The concern over the inability or unwillingness of governments to effectively enforce a human right to privacy and the overly bureaucratic and cumbersome privacy legislation (Samuelson, 2000) are the motivation for the alternative theories of personal data.

8.      Under the theory of personal data as property, the property denotes not material things but certain rights, in particular the right of ownership and the right to exclude (Reeves, 1996). 

9.      The property rights approach to personal data recognises that the property in cyberspace is information and power is the ability to control information (Gibbons, 1997).

10.  Thus, it is recognised that the individual ownership of such information is significant (Dam, 2005).

11.  This approach could provide the individual with a potentially powerful legal right as property indicates ownership, which in turn signifies possession, and which connotes control of an item to the exclusion of all others (Lipton, 2003).

12.   This model relies on self-regulation and market forces to ensure that private enterprises adopt practices acceptable to the public (Lim, 2002).

13.   For example, in the United States, privacy is seen as a property right and a commodity that is tradable.

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