ElectronicjournalofcomparatiVeLaw,vol.8.3(october2004),chttp://www.ejcl.org/> relatively little discussion outside the United States about whether such a perspective and approach could resolve the pressing problems of personal data protection-a fact that is not entirely surprising given the European human-rights-oriented approach to privacy protection It is the aim of this contribution to add european perspectives to the debate. It will show that although it is all too often argued that the creation of a property right is not in line with the human-rights-based approach to privacy, the European system appears to offer considerable room for a property rights model. However, the analysis will also show that, although vesting a property right in personal data may have some appeal, albeit for rhetorical purposes, there are doubts about whether such an approach will in our present-day society of pervasive technologies offer the claimed prospects of achieving a higher level of personal data protection 2. Human rights and the propertization of personal data Many different arguments have been suggested as advantages and disadvantages of vesting property rights in personal data. 4 Aside from the commentators that have specific points of criticism, there are those who claim at a more fundamental level that such an approach does not have a future in those legal systems that value privacy as a human right. It is argued that curing privacy by means of property rights is indicative of a typical U.S. approach to the matter. In contrast, the European debate on privacy protection would take a human rights perspective on the issue: the concept of (commercial) property may not be vested in privacy because privacy is attached to ind ividuals by virtue of their personhood, and, as such, this right cannot be waived or transferred to others(either for commercial or for other reasons) personal integrity. They are therefore seen as non-commod ifiable rights o taining a person's Also, human rights are conceived as closely linked to constituting and ma But the human rights argument may, of course, also work the other way around in a pure sense, the idea of human rights is all about empowerment. It could be argued that to deny individuals a property right in privacy for the reason that such an approach sits uneasily with human rights, would violate these very same rights: why should we prevent free individuals from using what means they have to strengthen their position, even if this does involve being exploited by others? Denying ind ividuals a property right would leave them less able to bargain for their interests, and thus less empowered The question then arises what takes preference, individual autonomy or the human rights laid down in our For an overview, see Julie E. Cohen, 'Exam ined Lives: Informational Privacy and the Subject as Object, 52 Stanford Law Review(May 2000), 1390; P Samuelson, " Privacy as Intellectual Property,, 52 Stanford Law Review (May 2000), 1 125 Margaret Jane Radin, Incomplete Commodification in the Computerized World, in Niva EIkin-Koren and Neil Weinstock Netanel(eds ) The Commodification of Information (The Hague: Kluwer Law Intemational 2002)atpp.17-18 See for a more detailed discussion of these arguments J.E.J. Prins, 'Property and Privacy: European Perspectives and the Commodification of Our Identity'(forthcoming 2005) See also D. Bey leveld and R. Brownsword, Human Dignity in Bioethics and Biolaw, (Oxford: Oxford University Press, 2001), p. 171Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 2 relatively little discussion outside the United States about whether such a perspective and approach could resolve the pressing problems of personal data protection - a fact that is not entirely surprising given the European human-rights-oriented approach to privacy protection. It is the aim of this contribution to add European perspectives to the debate. It will show that, although it is all too often argued that the creation of a property right is not in line with the human- rights-based approach to privacy, the European system appears to offer considerable room for a property rights model. However, the analysis will also show that, although vesting a property right in personal data may have some appeal, albeit for rhetorical purposes, there are doubts about whether such an approach will in our present-day society of pervasive technologies offer the claimed prospects of achieving a higher level of personal data protection. 2. Human rights and the propertization of personal data Many different arguments have been suggested as advantages and disadvantages of vesting property rights in personal data.4 Aside from the commentators that have specific points of criticism, there are those who claim at a more fundamental level that such an approach does not have a future in those legal systems that value privacy as a human right. It is argued that securing privacy by means of property rights is indicative of a typical U.S. approach to the matter.5 In contrast, the European debate on privacy protection would take a human rights perspective on the issue: the concept of (commercial) property may not be vested in privacy because privacy is attached to individuals by virtue of their personhood, and, as such, this right cannot be waived or transferred to others (either for commercial or for other reasons). Also, human rights are conceived as closely linked to constituting and maintaining a person’s personal integrity. They are therefore seen as non-commodifiable rights.6 But the human rights argument may, of course, also work the other way around: in a pure sense, the idea of human rights is all about empowerment. It could be argued that to deny individuals a property right in privacy for the reason that such an approach sits uneasily with human rights, would violate these very same rights: why should we prevent free individuals from using what means they have to strengthen their position, even if this does involve being exploited by others?7 Denying individuals a property right would leave them less able to bargain for their interests, and thus less empowered. The question then arises what takes preference, individual autonomy or the human rights laid down in our 4 For an overview, see Julie E. Cohen, ‘Examined Lives: Informational Privacy and the Subject as Object’, 52 Stanford Law Review (May 2000), 1390; P. Samuelson, ‘Privacy as Intellectual Property’, 52 Stanford Law Review (May 2000), 1125. 5 Margaret Jane Radin, ‘Incomplete Commodification in the Computerized World’, in Niva Elkin-Koren and Neil Weinstock Netanel (eds.), The Commodification of Information (The Hague: Kluwer Law International 2002), at pp. 17-18. 6 See for a more detailed discussion of these arguments J.E.J. Prins, ‘Property and Privacy: European Perspectives and the Commodification of Our Identity’ (forthcoming 2005). 7 See also D. Beyleveld and R. Brownsword, Human Dignity in Bioethics and Biolaw, (Oxford: Oxford University Press, 2001), p. 171