The Practical and Theoretical Problems with ‘Balancing’

Abstract

In the realm of privacy and data protection – as in the fundamental rights framework in general – balancing has become the standard approach for dealing with legal disputes. It comes, however, with a number of practical and theoretical problems. This article analyses those problems and compares the method of balancing with the original approach of most human rights frameworks, such as the European Convention on Human Rights. It does so by analysing two cases in detail: the European Court of Human Right's case Delfi v. Estonia and the Court of Justice of the EU's judgment Coty v. Stadtsparkasse. From this analysis, it follows that the concept of balancing signals a shift away from the deontological and towards a utilitarian understanding of fundamental rights. This is not only of theoretical importance, as it could also mean that in time, human rights frameworks as such might become redundant.