Preface

• Author: Katherine H Woodcock; W Gregory Voss

XIII

PREFACE

Privacy and data protection laws in Europe are distinct from privacy laws in the

United States, both in their history and focus. Generally, Europe developed its body

of laws in a broader sense, as omnibus legislation, and not on a sector-by-sector

basis of legislation such as that in the United States.1 This has been driven forward

by the (mis)use of information during World War II, and in certain European coun-

tries (such as Germany, Spain, and France) sensitivity with respect to data protection

runs high. One American scholar speaks of U.S.–Western Europe “signicant privacy

conicts.”2 He describes a divide in which privacy in Western Europe is an aspect of

dignity, and privacy in the United States is an aspect of personal liberty.3

The Organisation for Economic Co-operation and Development (OECD) Guide-

lines, discussed later, and European national laws developed in the 1970s spurred the

proliferation of data protection laws in Europe. Despite the many differences in these

rules, they exhibited substantial similarities.4 The main legislative text on data protec-

tion in Europe is the Directive 95/46/EC on data protection (the Directive).5 It sets out

the basic principles of data protection and—as a European Union directive—requires

that the various European Union Member States6 (Member States) implement its rules

into their national legal system, generally through the respective Member States’ par-

liaments adopting national legislation. Under European Union primary law—in this

case, Article 288 of the Treaty on the Functioning of the European Union (TFEU),

as in force today—it is left up to the “national authorities” of the Member States

to choose the “form and methods” of the implementation of directives.7 Inevitably,

1. See Paul M. Schwartz, The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures, 126

H. L. R. 1966, 1974 (2013).

2. James Q. Whitman, The Two Western Cultures of Privacy: Dignity versus Liberty, 113 Y L. J. 1151,

1155 (2004).

3. Id. at 1161.

4. For a concise and exhaustive global overview of data protection and privacy laws, see Hon. Michael

Kirby, ch. 1: Remarks on the 30th Anniversary of the OCED Privacy Guidelines, in OECD, T Y

  OECD P G, http://www.oecd.org/sti/interneteconomy/49710223.pdf.

5. Directive 95/46/EC of the European Parliament and of the Council of 24 Oct. 1995 on the protection

of individuals with regard to the processing of personal data and on the free movement of such data, 1995

O.J. (L 281) 31 (Nov. 23, 1995), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CE

LEX:31995L0046:en:HTML.

6. There are 28 member states. For the full list, see http://europa.eu/about-eu/countries/member-

countries/index_en.htm.

7. See Consolidated Version of the Treaty on the Functioning of the European Union, art. 288, at 171–72,

May 9, 2008, 2008 (C 115) 47, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:00

47:0199:EN:PDF.

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