Much of the criticism of data protection law focuses on our role as 'data subjects'. It has been demonstrated repeatedly that we lack the capacity to act in our own best interests and, what is more, that our decisions have negative impacts on others. Our decision-making limitations seem to be the inevitable by-product of technological, social and economic reality. Data protection law bakes in these limitations by providing frameworks for notions such as consent and subjective control rights and by relying on those who process our data to do so fairly. Despite these valid concerns, Damian Clifford argues that the (in)effectiveness of data protection law is often more difficult to discern than the critical literature would suggest, while also emphasizing the importance of the conceptual value of subjective control. These points are explored (and, indeed, exposed) by investigating data protection law through the lens of the insights provided by law and emotion scholarship.
Damian Clifford is a Senior Lecturer in Law at the Australian National University. Previously a FWO Aspirant Fellow at KU Leuven's Centre for IT and IP Law (CiTiP), his research focuses on privacy, data protection and technology regulation, and he has published across these fields. Damian is one of the core editors of the Cambridge Elements series, Data Rights and Wrongs (Cambridge University Press). His books Data and Private Law (Hart Publishing, edited with Jeannie Marie Paterson and Kwan Ho Lau) and Data Protection Law and Emotion (Oxford University Press) were published in 2023 and 2024 respectively.