The proportionality principle in privacy and data protection law

Abstract

The proportionality principle represents the most noticeable developments in contemporary privacy and data protection law serving as an effective tool to resolve conflicts with regard to fundamental rights. Although proportionality is a doctrinal tool, this mechanism can also serve as a precondition when implementing the new processing activities or law within the privacy and data protection area. It is undoubtedly a pervasive and familiar concept in European and, in particular, European Union (EU) Member State laws and within German legal theory and jurisprudence, proportionality is a well-developed principle. Therefore, this paper examines the application of the proportionality principle in German legal theory. Secondly, this framework will then broaden the perspective of interpretative challenges of proportionality principle within the ambit of the fundamental right to privacy and data protection in the EU framework. The aim is to assess the balance between these conflicting rights. Accordingly, this examination considers the mechanism of the proportionality test concerning the principle of data protection in EU law.