Towards and Internal Hierarchy of Values in the EU Legal Order. Balancing the Freedom of Speech and Data Privacy

This article compares American constitutional law and practice on the First Amendment freedom of speech vis-à-vis data privacy in the US to the right to freedom of expression vis-à-vis data privacy rights under European law. The purpose of the comparison is to sketch the current state of an internal hierarchy of values for each of the two (EU and US) legal orders. Whereas in the US commercial interests seem to have taken precedence in the balance between freedom of speech and data privacy, the EU is at a crossroads. As will be laid out in this article the Court of Justice of the European Union (CJEU) has started to show preference for data privacy rights over commercial interests through the cases Google Spain, Digital Rights Ireland and Schrems. The idea that both freedom of expression and data privacy have a political and an autonomy aspect is developed. The main task of the CJEU in the balancing exercise is not to prioritize one right over the other. The CJEU can rather justify when one aspect of a right might under the circumstances of a particular case be deemed more important than the aspect of another right. Following this notion further, when the right to access to documents is at stake, the autonomy aspect of data privacy rights needs to give way to political values such as accountability and self-government protected by the right to access to documents. I suggest a calibrated proportionality test for the CJEU modelled on the US tiers of scrutiny.