ElectronicjournalofcomparaTiveLaw,vol.8.3(october2004),<http://www.ejcl.org/> with a set of principles of fair personal data processing which has very little to do with undamental interests essential to individual autonomy, dignity and freedom. The starting point of the European legal regime is that the processing of personal data is allowed in principle, provided that it is done in accordance with the stipulated principles of fairness, finality, transparency, proportionality, confidentiality and control data as inough the EU Directive favours utilitarian considerations in protecting person imply that the framework acknowledges property interest in personal data. The European o Directive is clearly not shaped from the basic perspective of an individuals autonomy and choice regarding his personal data. Nevertheless, some instruments of control and power are included in the regime and some may thus claim that, at least in a commercial setting, a property approach may not be such a very strange phenomenon under the European regime after all. 4 One might even argue that the European legal system on data protection appears more receptive to a property approach than the U. S system However, would vesting a property right in personal data offer individuals a better instrument with which to protect their interests, thus solving present-day problems of data protection? While vesting a property right in personal data may indeed have some appeal albeit for rhetorical purposes, the obvious question is what the consequences of such an pproach would be Is such an approach viable, and would it really offer the claimed prospects of achieving a higher level of personal data protection? I expect not 4. The propertization and commodification of our identities Given that, to a large extent, individuals depend on the use of their data and that personal data are the motor of our information society, a move towards a legally recognized property right in personal data will in effect not change the free public availability and exchange of these data. It may be argued that at present personal data are almost by definition part of the public domain. They are so widely available, obtainable and usable that, for practical as well as legal purposes, they seem to be inside the public domain would this change if property rights were vested in personal data? In theory, yes. In reality, however, personal data will continue to be widely available to organizations, companies and the public. Even if personal data wer to be protected by technologies such as P3P(Platform for Privacy Preferences Project)or other technical negotiating protocols, individuals would nevertheless be willing, required or forced to make their data available for use by third parties. While titleholders of copyrighted works may to a large extent oversee the limited consequences of this decision(effects royalties obtained and'fame), this is not true for individuals who decide not to sell their personal data. The axis of variation here is not that straightforward. For, in contrast to and sometimes unknown effects on a person's position and abilities in everyday life. n (a copyrighted works, decisions on access to and use of personal data may have far-reachin contrast to copyrighted works, the issue of control of personal data is not so much as to whether personal data are used. Instead, it is about the specifics of the context in which the data are processed as well as the actual uses to which personal data are put. To capture the essence of this protection need, Helen Nissenbaum recently proposed the introduction of a A more detailed discussion of this argument can be found in Prins(fort 2005)Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 5 with a set of principles of fair personal data processing which has very little to do with fundamental interests essential to individual autonomy, dignity and freedom. The starting point of the European legal regime is that the processing of personal data is allowed in principle, provided that it is done in accordance with the stipulated principles of fairness, finality, transparency, proportionality, confidentiality and control. Although the EU Directive favours utilitarian considerations in protecting personal data as well as allowing private arrangements regarding the level of protection, this does not imply that the framework acknowledges property interest in personal data. The European Directive is clearly not shaped from the basic perspective of an individual’s autonomy and choice regarding his personal data. Nevertheless, some instruments of control and power are included in the regime and some may thus claim that, at least in a commercial setting, a property approach may not be such a very strange phenomenon under the European regime after all.14 One might even argue that the European legal system on data protection appears more receptive to a property approach than the U.S. system. However, would vesting a property right in personal data offer individuals a better instrument with which to protect their interests, thus solving present-day problems of data protection? While vesting a property right in personal data may indeed have some appeal, albeit for rhetorical purposes, the obvious question is what the consequences of such an approach would be. Is such an approach viable, and would it really offer the claimed prospects of achieving a higher level of personal data protection? I expect not. 4. The propertization and commodification of our identities Given that, to a large extent, individuals depend on the use of their data and that personal data are the motor of our information society, a move towards a legally recognized property right in personal data will in effect not change the free public availability and exchange of these data. It may be argued that at present personal data are almost by definition part of the public domain. They are so widely available, obtainable and usable that, for practical as well as legal purposes, they seem to be inside the public domain. Would this change if property rights were vested in personal data? In theory, yes. In reality, however, personal data will continue to be widely available to organizations, companies and the public. Even if personal data were to be protected by technologies such as P3P (Platform for Privacy Preferences Project) or other technical negotiating protocols, individuals would nevertheless be willing, required or forced to make their data available for use by third parties. While titleholders of copyrighted works may to a large extent oversee the limited consequences of this decision (effects on royalties obtained and ‘fame’), this is not true for individuals who decide not to sell their personal data. The axis of variation here is not that straightforward. For, in contrast to copyrighted works, decisions on access to and use of personal data may have far-reaching and sometimes unknown effects on a person’s position and abilities in everyday life. In contrast to copyrighted works, the issue of control of personal data is not so much as to whether personal data are used. Instead, it is about the specifics of the context in which the data are processed as well as the actual uses to which personal data are put. To capture the essence of this protection need, Helen Nissenbaum recently proposed the introduction of a 14 A more detailed discussion of this argument can be found in Prins (forthcoming 2005)