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SÂRCU-SCOBIOALĂ, Diana; RUSU, Valentina. Conceptul de date cu caracter personal şi categoriile de date personale protejate în cadrul Consiliului Europei . In: Revista Moldovenească de Drept Internaţional şi Relaţii Internaţionale. 2011, nr. 3, pp. 5-13. ISSN 1857-1999.
|Revista Moldovenească de Drept Internaţional şi Relaţii Internaţionale|
|Numărul 3 / 2011 / ISSN 1857-1999 /ISSNe 2345-1963|
Whereas law is a complex and dynamic system, responsive to the historic, social, economic and other changes, legal doctrine has the role to reflect these changes continuously and to point out new concepts and legal institutions. However, there are some areas or sensitive issues that generate ambiguity, in that it exceeds the legal doctrine evolution speed. One such issue is the personal data. The concept of personal data is relatively new for the legal theory, but a challenging one. The notion rather tends to be assumed than closely analyzed and the ambiguities related to this concept continue to make differences between the implementation of national protection regimes. Nowadays, when we can feel technological capabilities, which allow people to change, through social networking sites, so easy information about their preferences and behaviour, to make them public and accessible worldwide, when “cloud computing” presents a real danger of losing control of potentially sensitive information, when processing personal data operators and such data carriers proliferate, when human beings are continuously scanned, filmed, becomes urgent the need to define the area of private life and data concerning individuals. International acts, as well as the national regulations are designed in a general manner in order to cover all personal data and to offer an efficient protection of privacy.
The international legal instruments prepared by the Council of Europe in the field of data protection, is the Article 8 of the European Convention on Human Rights, Data Protection Convention (commonly known as Convention 108), the Amendments to this Convention and its Additional Protocol, as well as the fifteen recommendations adopted by the Committee of Ministers, have a broad scope of application, justified by the need to ensure the effective protection of private live and personal data. These instruments protect all the personal data as a whole, without defining certain categories of such data. Particular personal data, like name, ethnic origin, health state, sexual identity, images, videos, information transferred through electronic mail, political views, finger prints etc. were emphasized in the European Court of Human Rights (ECHR) case-law. It is worth to be noted the dynamic character of the ECHR case-law that does not hesitate to highlight new categories of personal data. However, ECHR case-law is also unpredictable, and it would be difficult to draw up a list of certain data that are to be considered personal in any context.
Recent developments towards modernization of Convention 108 and reformation of EU data protection regime take into consideration the technological challenges and pay a special attention to sensitive data, but do not focus on the concept of personal data and its varieties. The approach seems to remain the same: a general definition and no classifications, with the aim to cover any possible personal data. Therefore, a new approach is strongly recommended, namely to confer clarity to the concept of personal data, to delimitate, to the possible extent, certain categories of such data and, where necessary, relevant criteria for the identification of personal data falling inside and outside the scope of protection. Moreover, enhancing the common understanding of the key concept of personal data is crucial for a better implementation of data protection regimes.