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Sam Walker – Data Rights: Enhancing the Power of Data Subjects under the General Data Protection Regulation

InfoSoc Seminar Series

Wednesday 30 October 2019, 14:00, Room W416

The General Data Protection Regulation (GDPR) provides a right to rectify inaccurate information (Article 16) and a right to erase information (Article 17). However, these rights are separate and distinct – they cannot be used together. Thus one can have information corrected or erased but one cannot have information erased and replaced with new information. This might be desirable when the information was accurate at the time it was created but is no longer accurate; e.g. change in legal gender. Yet this depends on what counts as inaccurate information – does it depend on the information being inaccurate when it was created or does it only need to be inaccurate at the time the request is made? If the information is not determined to be inaccurate then erasure is the only option and rectification is excluded. There are two issues concerning the construction of these rights. First, the legal  conceptualisation of accurate will determine which right can be used. Second, these are distinct rights but the power of data subjects can be enhanced by the recognition of a combined right. The United Kingdom has implemented the GDPR in the Data Protection Act 2018 (DPA) which mirrors the GDPR in treating the right to rectification and the right to erasure as separate rights. If the European Union and the UK are serious about protecting and enhancing the power of data subjects in the face of powerful and influential data controllers then the notion of accuracy should be broadly interpreted and the rights providing greater control over data need to be introduced. This paper argues for a particular conception of accuracy that changes over time – thus it should not be tied to any particular temporal snapshot. Furthermore, a right of find and replace should be introduced over the information held by data controllers to increase the power and protection of data

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Samuel Walker is Lecturer in Law at Bournemouth University