Privacy as Europe's first Amendment

• Published date: 01 March 2019
• Date: 01 March 2019
• DOI: http://doi.org/10.1111/eulj.12316

SPECIAL ISSUE ARTICLE

Privacy as Europe's first Amendment

Bilyana Petkova*

Abstract

The protection of universal principles varies across jurisdictions: the prominence of free speech in

the United States is undisputed. My argument is that the First Amendment took off only during

the New Deal and later, the Civil Rights revolution as an identity‐formation and unifying tool in a

deeply divided society. The symbolic significance of free speech in the US remains central to this

day. In the midst of its identity crisis with looming Brexit, Europe is now experimenting with pri-

vacy‐as‐constitutional identity in a similar way. This article seeks to unpack the values encompassed

in privacy and freedom of speech, looking into the different functional responses that two different

democratic societies place their bets on. As data protection and privacy come to a clash with impor-

tant trade and security interests in an evermore‐globalized world, the power of the outward‐ori-

ented European privacy discourse is likely to remain above all rhetorical.

1|INTRODUCTION: A NOTE ON COMPARATIVE LAW METHODOLOGY

The question of methodology in comparative constitutional law remains unsettled

1

but most comparativists would

agree that one of the central reasons

2

why we recur to legal comparisons in the first place is in order to extract

principles that can be adapted and applied across different legal systems; in other words, most academic comparisons

turn to be linear: we tend to compare in order to learn from one another. In this regard, it makes sense if one looks,

for example, into how privacy is protected and balanced with other rights and interests in one legal system and

compares this to the way privacy is protected and balanced in another legal system. Similarly, a “traditional”legal

comparison would explore the way freedom of expression is protected and balanced in one jurisdiction vis‐à‐vis

the way this is done in another. The prima facie “logical”comparison is thus to compare a human right in one legal

order to the same human right in another legal order: we compare privacy with privacy and freedom of speech with

freedom of speech.

*Assistant Professor, University of Maastricht School of Law and Visiting Fellow, Yale Information Society Project.

1

Scholarly agreement on comparative law methodology is scant. For a sample of different approaches, see M. Rosenfeld and A. Sajó, The Oxford Handbook of

Comparative Constitutional Law (Oxford University Press, 2012).

2

The other main reason is to gauge whether the system of international law converges or diverges in a certain area. See J. Scott, ‘Extraterritoriality and Ter-

ritorial Extension in EU Law’(2014) 62 American Journal of Comparative Law 1. See also B. Petkova, ‘Domesticating the “Foreign”in Making Transatlantic

Data Privacy Law’(2017) 15 International Journal of Constitutional Law,4.

Received: 11 December 2018 Revised: 22 February 2019 Accepted: 22 February 2019

DOI: 10.1111/eulj.12316

140 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:140–154.wileyonlinelibrary.com/journal/eulj