Private law rights in the digital era

• Author: Sophie Canas
• Position: Magistrat, Conseiller référendaire à la Cour de Cassation
• Pages: 41-49

IRISH JUDICIAL STUDIES JOURNAL

[2018] Irish Judicial Studies Journal Vol 2(1) 41

PRIVATE LAW RIGHTS IN THE DIGITAL ERA

Sophie Canas

Magistrat, Conseiller référendaire à la Cour de Cassation

Introduction

The digital revolution is often presented as constituting, along with the invention

of writing and the printing press, an essential step in the history of mankind. It

has profoundly changed our behaviour, our ways of life and even our

understanding of reality. Legislatures and the courts had to quickly deal with the

consequences of these changes, wherever possible, by using already established

concepts or by creating new legal categories.

There have thus been numerous developments in the context of private law. For

example, under French law, the civil code has admitted electronic documents

which have the same probative force as written documents; the consumer code

has introduced specific protective mechanisms for the benefit of consumers who

purchases goods or takes out a loan online; the labour code has taken new ways

of working into consideration, such as telecommuting. These developments are

of course important; they do not, however, constitute real transformations, but

rather they show us how private law has adapted itself to our technological

environment.

Other rights have, however, undergone more profound changes, such as the

right to privacy and the extension of this right to include the protection of

personal data, which I will focus on. Both have changed with the advent of the

internet.

The right to privacy

The right to respect for private life is affirmed in numerous international and

European texts. We only need to refer to Article 8 of the European Convention

on Human Rights and Article 7 of the Charter of Fundamental Rights of the

European Union. In France, Article 9 of the civil code solemnly affirms that:

‘Everyone has the right to respect for his private life.’ While the right to privacy

was first exclusively considered as providing protection against public or private

intrusions within the sphere of intimacy of each individual, it is also now

understood, under the case law of the European Court of Human Rights, as a