On the Constitutional Normative Logic of Data Rights Protection

ZHENG Xianjun

Abstract: Data rights refer to the ownership and the right of disposing of individuals over their own data and information. The subject is a natural person, and it is a constitutional fundamental right. Long before the European Union’s General Data Protection Regulation (GDPR) was enacted, the constitutions of some states had stipulated the right to personal data and the principle of consent. Current research takes constitutional delegation and institutional guarantees as the constitutional normative basis for data rights so that data rights are only objective norms and national protection obligations. This view eliminates the defensive nature of a fundamental right against infringement by public power, ignores the public law protection of data rights, and confuses the difference between data rights and digital rights. The ethical nature of data rights is individual self-determination rather than the cyber democracy of digital rights. As a fundamental right, data rights are subject to the principle of legal reservation. Restrictions on data rights shall be limited and the principle of proportionality protects the essence of data rights from infringement by the legislature. Individual dignity is the basis for judging whether the core of data rights is violated. It is necessary to eliminate the theoretical blind spot that data rights are merely private law rights and to overcome the “Idols of the Marketplace” and “Idols of the Theater” created by objective norms.

Keywords: fundamental rights · right to defense · objective norms · data rights · principle of proportionality