Control over Personal Data, Privacy and Administrative Discretion in Europe and the USA : the Paradox of Italian "Data Protection Authority"

A social field in which many of the paradoxes of legal modernity occur is the field of information and confidentiality. Europe is a laboratory for new legal forms that give rise to the risk of the exclusion of entire sectors of the population from rights that seem to become gradually subject to the discretionary powers of the administration. In the area of "personal data”, the legal culture seems to have transposed uncritically the theory of "control over one’s own personal data" conceived with reference to the so-called "informational privacy”: according to this theory, each person has the right to give his/her informed consent to the use that others want to make of his/her personal information. However, the European implementation of this theory has given rise to an apparent paradox. A network of independent administrative authorities, each enjoying a degree of administrative discretion, which is variable, but frequently broad, carries out the implementation of European legislation. The action of these authorities tends to become dominant, with the unintended consequence, not provided for by the European legislator, that those very same personal rights that are the object of its protection are compressed. The author present the results of his theoretical and empirical work, which was carried out in Italy, a Country which can play an emblematic role in this research due to the highly paternalistic character of its Data Protection Authority.