La protection de la vie privée dans les réseaux: des paradigmes alarmistes aux garanties effectives

Actualization of legal approaches are needed to protect effectively the right of privacy. In network environments, data circulates and it is persistent. Trying to prevent misuse by hindering circulation is less and less effective. Legal framework must be reframed in order to improve guarantees of quality of information used to take decisions about individuals. In network universe, information is persistent and circulating. Trying to prevent information circulation just in case that it would be misused is a costly and inefficient approach. Privacy protection is weakened by faulty targeting of privacy law based on approaches prevailing in the 1970s and 1980s. Those approaches deny that it is legitimate for some information to circulate in public spaces, but do not provide effective protection for information truly relevant to privacy. The risk of ending up with a set of rules incompatible with the requirements of government seems sufficiently serious to justify assessment of the current legal framework and approaches that could increase its effectiveness. Given the inflexibility resulting from inappropriate interpretations, both government officials and legislators have had to resort to expedients, such as consent management and legislation establishing exceptions, thereby weakening protection for personal information. Worse, by paying little attention to effective enforcement of privacy legislation in situations where there is great risk of violation, we have failed to strengthen regulations against practices that truly invade privacy. Effective modernization of privacy legislation requires a critical rereading of the legislation’s foundations and how it has been enforced. This demands a lucid evaluation of the contexts in which information circulates. We will only weaken privacy rights if we take refuge in a faint-hearted defence of formal mechanisms inherited from earlier times. If we take that approach, we will increase the risk of ending up with ever more illusory protection.