Informational Self-Determination, EU Law and Informational Capitalism

Damian Chalmers is Professor of Law and Regional Integration at the National University of Singapore. Prior to that, he worked for 25 years at LSE, 12 years as Professor of European Union Law. He was head of its European Institute for 4 years and Director of its Jean Monnet Centre of Excellence for 5 years. He has also served as co-editor of the European Law Review and held visiting appointments at various Universities such which include Melbourne, NYU, College of Europe, European University Institute, CEU, Trento, and FGV.

Abstract: The principle of informational self-determination shapes the General Data Protection Regulation (GDPR), Regulation 2016/679, and is seen as what sets the Union apart from some other markets in our personal data. This allows our personal data only to be processed (a) if we have explicitly consented (b) there is an overriding public interest and the data is processed proportionately or (c) there is a legitimate interest in processing the data that can outweigh the privacy of the data subject. This principle follows this up with entitlements for the data subject to find out what is being held on them and for what reason, to hold processors accountable and to pull illegally processed data or data that do not longer serves its purpose off the web. This principle has generated significant soft power for the EU and been emulated across the world.

However, if it is so great why do we find abusive practices as prevalent on EU markets as US ones?

The answer lies, it will be argued, in the principle being used not only to regulate EU personal data markets but also to constitute them. It is central to enabling them, establishing their subject-matter and parameters, and providing reasons why data subjects should trust them. In this, it allows the commodification of personal data in three ways: the commodification of knowledge about individuals, namely selling information about us; commodification of how we are identified, namely operations that seek to exploit the traits we share with others; and commodification of our identities, namely operations that seek to shape our self-understandings of who we are and what we want. By contrast, the GDPR seeks only to regulate first of these, the commodification of knowledge. It has let the buying and selling of the others go rip.

For more information see: https://www.cels.law.cam.ac.uk/weekly...