Data Protection and Research

Driven by breakthroughs in data processing, great progress has been made in the field of data-intensive research in recent years. The data required for this type of research is regularly personal data within the meaning of data protection law. This is all the more true as the concept of personal data has been continuously expanded as a result of technical developments in the practice of judicial and administrative authorities. Innumerable research projects must therefore ensure that the requirements of data protection law are observed.

However, the concepts and approaches of current European and Swiss data protection law were developed long before the emergence of new, data-driven research approaches. Accordingly, these data protection laws lack a structured approach to the challenges of data-driven research and it is sometimes assumed that the problems can be solved by simple means (anonymisation or publication of results in anonymised form). However, this is hardly the case today. For many researchers, this creates uncertainty as to which research work is permissible under which conditions. Although this can certainly be answered in individual cases, the legal uncertainty is considerable (even for specialised lawyers). In particular, it is largely unclear how the interests within the system of standards under data protection law are to be balanced, in particular the public interest in knowledge and the interests of the individuals concerned in the protection of their privacy and/or in "informational self-determination". This balancing of interests is also reflected in a conflict of fundamental rights, namely between the freedom of science (Art. 20 BV) and the protection of personal freedom and privacy (Art. 10 and 13 BV).

The legal uncertainty creates the danger that promising research projects will not be carried out or that delays or high costs will result. This could be largely avoided if the legal situation were sufficiently clear. In addition, there is the currently much-cited danger that Europe will fall behind the USA and China in research and development due to the strict requirements of data protection law.

Against this background, the ITSL is making the topic of "data protection and research" a research focus in the current year (and in part even beyond). The aim is to make significant contributions in Switzerland and beyond to the question of how data protection law can be interpreted and applied to make research largely possible - without jeopardizing the interests of the persons concerned that are worthy of protection.