Demystifying the modernized European data protection regime: Cross-disciplinary insights from legal and regulatory governance scholarship

• 成果类型: Article
• 署名作者: Yeung, Karen; Bygrave, Lee A.
• 署名单位: University of Birmingham; University of Birmingham; University of Oslo
• 刊物名称: REGULATION & GOVERNANCE
• ISSN/ISSBN: 1748-5983
• DOI: 10.1111/rego.12401
• 发表日期: 2022
• 页码: 137-155
• 关键词: risk; INFORMATION

摘要

This article critically examines fundamental aspects of the recently reformed European regime for protection of personal data, focusing on the General Data Protection Regulation (GDPR) adopted by the European Union (EU) in 2016. Although the GDPR is now a central concern for many organizations across multiple sectors, many complain that it is arcane, confusing, and complex. By combining knowledge from two disciplinary perspectives - from regulatory governance scholarship, on the one hand, with legal scholarship from the fields of data protection law, constitutional law, and fundamental rights, on the other hand - this article seeks to demystify the key elements of the regime's architecture and approach in light of the significant uncertainties concerning the nature of its requirements. In particular, this article examines the tension between the regime's pronounced risk-based approach to compliance and its basic objective of safeguarding fundamental rights, and the challenges facing data protection authorities in providing timely clarifications of the regime's norms. We argue that, despite its complex and arcane character and continuing uncertainty about the precise scope of its requirements, the regime is an innovative hybrid with a significant degree of in-built future-proofing that should help render it more resistant to being rapidly overtaken or outpaced by organizational-technological developments. The secondary aim of this article is to demonstrate how academic insights from two distinct but related disciplinary perspectives - legal scholarship and regulatory governance studies - offer a potentially fruitful approach to enrich understandings of the European data protection regime in particular, and of the mechanics, efficacy, and legitimacy of regulatory governance regimes more generally.