Publication details

Data protection as performance-based regulation

Authors

MÍŠEK Jakub

Year of publication 2022
Type Chapter of a book
MU Faculty or unit

Faculty of Law

Citation
Description The chapter provides an analysis of a regulatory approach of performance-based regulation in the context of personal data protection. The introductory part of the chapter summarises the basic premises of the European personal data protection framework. The second part of this chapter stems from research done mainly by Cary Coglianese and explores the regulatory approach of performance-based regulation, which focuses on the prescribed result and not on the way how it should be achieved. The third part of this chapter focuses on the principle of accountability, which it connects with the notion of the risk-based approach as present in the regulation No. 2016/679 (General Data Protection Regulation, GDPR). It argues that together they can be understood as a performance-based regulation, and thus, they allow for sufficient flexibility of the data controller’s duties and at the same time ensure sufficient protection of the data subject’s rights. The fourth part of the chapter builds on theoretical foundations of performance-based regulation as formulated by Coglianese, discusses the advantages and challenges of this regulatory approach and focuses on the outcomes it has on interpretation and application of provisions of the GDPR.
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