The distinction between privacy and data protection in the jurisprudence of the CJEU and the ECtHR

based on EU secondary legislation and does not yet take into account the fundamental right to data protection enshrined in the Charter of Fundamental Rights of the European Union that has meanwhile become a binding part of EU primary law. Both legal developments raise the question of whether the fundamental right to data protection is only a subset of the right to privacy, or whether it also provides additional protection. This article discusses the relevant jurisprudence of Europe’s two highest courts, the European Court of Human Rights in Strasbourg (the Strasbourg Court or ECtHR) and the CJEU, with regard to the differences between privacy and data protection. Though both courts tend to treat data protection as an expression of the right to privacy, the specifics of each right must be respected. Before turning to the case law, it is necessary to address the two underlying systems of fundamental rights protection, as well as the specific provisions on privacy and data protection within these two systems. Afterwards we will examine the interpretation of the two rights by the two courts and highlight the differences between them. Finally, we will attempt to illustrate the differences and overlaps between privacy and data protection using the example of the pending Google and Google Spain case. The Convention and the Charter