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A simple mathematical model for the legal concept of balancing of interests


Zufall,  Frederike
Max Planck Institute for Research on Collective Goods, Max Planck Society;

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Zufall, F., Kimura, R., & Peng, L. (2021). A simple mathematical model for the legal concept of balancing of interests.

Cite as: http://hdl.handle.net/21.11116/0000-0008-6ABD-D
We propose simple mathematical models for the legal concept of balancing of interests, to resolve the conflict between the rights to privacy and to the protection of personal data in Art. 7 and Art. 8 of the EU Charter of Fundamental Rights (EUCh) against the right of access to information derived from Art. 11 EUCh. Our approach is based on the idea of transforming legal criteria into arguments (or inputs) of a function. For simplicity, we assume that the balancing depends on only selected legal criteria such as the social status of affected person, and the sphere from which the information originated, which are represented as inputs of the models, called legal parameters. Additionally, we take “time” into consideration as a legal criterion, building on the European Court of Justice’s ruling on the right to be forgotten: by considering time as a legal parameter, we model how the outcome of the balancing changes over the passage of time. To catch the dependence of the balancing's outcome by these criteria as legal parameters, data were created by a fully-qualified lawyer. Two mathematical models, a time-independent model and a time-dependent model, are proposed, that are fitted by using the data.