THE RIGHT TO PRIVACY IN THE DIGITAL AGE THROUGH THE PERSPECTIVE OF FIDUCIARY DUTIES

Abstract

The article examines the point of ensuring the right to privacy in the digital age through the perspective of fiduciary legal relations. The author analyzes the international legal basis for the protection of privacy enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights, and traces the evolution of the doctrinal understanding of privacy from the classic «right to be left alone» to Helen Nissenbaum’s concept of contextual integrity, according to which privacy is the right to an appropriate flow of personal information within a specific social context. Considerable attention is paid to a critical analysis of the dominant model of informed consent as the primary mechanism for protecting personal data. It is argued that this model is ineffective given the fundamental inability of users to assess all the consequences of giving consent, the significant volume and complexity of privacy policies, information asymmetry on the part of data controllers, power asymmetry manifested in manipulative interface design, and the de facto monopoly of digital companies, which deprives users of real alternatives. Based on a comparative analysis of the characteristics of fiduciary relationships and legal relationships between personal data controllers and users, the author demonstrates the existence of significant structural similarities between them, which justifies the application of fiduciary duties of loyalty, care, and confidentiality to the activities of digital companies. The content of these duties is revealed: the duty of loyalty involves prohibiting the manipulation of users, acting in their interests, and avoiding conflicts of interest; the duties of care and confidentiality are aimed at ensuring the security of personal data, in particular through the principle of data accountability. The author analyzes the advantages of the fiduciary approach, in particular its correlation with the principles of purpose limitation and data minimization enshrined in the EU General Data Protection Regulation, and also considers criticisms of this concept regarding the problem of dual loyalty, incompatibility with advertising business models, and enforcement difficulties. At the same time, alternative approaches to strengthening privacy are explored, including antitrust regulation, functional compatibility, and the environmental analogy of excessive data collection. In conclusion, it is argued that the fiduciary model is not a universal solution to the problem of privacy protection, but it provides a valuable additional legal tool that should be applied in Ukrainian legislation in specific areas where users are particularly vulnerable.