Title

:

The Redefining the smart grids’ smartness. Or why it is
impossible to adequately address their risks to privacy and
data protection if their environmental dimension is
overlooked
Author: Raphaël Gellert

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Redefining the smart grids’ smartness. Or why it is
impossible to adequately address their risks to privacy
and data protection if their environmental dimension
is overlooked
RAPHAËL GELLERT
1

*

Introduction

Smart meters and grids are innovations in the field of Information and
Communication Technologies (‘ICTs’), the goal of which is to enable consumers
to reduce their electricity consumption, and hence to protect the environment.
Their so-called smartness derives from them being ICT-enabled (as opposed to
regular, “normal” or “dumb” electric meters and/or grids). They are an
essential component of the European Union’s (‘EU’) “ICT for Energy
Efficiency” (‘ICT4EE’) strategy. This strategy is itself an element of the EU’s
energy efficiency policy, which underpins most of its environmental protection
work. However, as communication technologies, the processing of personal
data is at the core of the meters’ functioning. For this reason, the privacy
1

2

*

1

2

PHD Candidate at Vrije Universiteit Brussel, Faculty of Law, Research Group on
Law, Science, Technology and Society. This research has been undertaken in the
context of the national research project ‘A Risk to a Right? Exploring a new notion in
data protection law’, funded by the Research Foundation – Flanders (FWO)
(G046815N).
It is important to distinguish between smart grids as such, and smart meters, which
are one of the smart grids’ technologies (along with intelligent storage devices for
instance), and which the European Union sees as crucial and indispensable for the
deployment of smart grids: OECD, ‘ICT Applications for the Smart Grid Opportunities and Policy Implications’ (OECD Digital Economy Papers No. 190,
OECD Publishing, 10 January 2012) 10. For further development of this distinction,
see below section 2.1. Because meters are part of the grids, and because our
reflections apply to both, we use the two terms indistinctively throughout the text.
Some even distinguish another component of the smart grid, the smart metering
system, which is the infrastructure processing data from a smart meter: Dariusz
Kloza, Niels Van Dijk and Paul De Hert, ‘Assessing the European Approach to
Privacy and Data Protection in Smart Grids. Lessons for Emerging Technologies’ in
Florian Skopik and Paul Smith (eds), Smart Grid Security: Innovative Solutions for a
Modernized Grid (Syngress, 2015) 11, 12.
There are other goals associated with the smart grids, such as user empowerment,
better energy prices, better grid management, and economic advantages for energy
suppliers and operators notably in terms of infrastructures, and diminutions of
process costs: Kloza, Van Dijk and De Hert, above n 1, 15-16; Cédric Clastres, ‘Smart
Grids: Another Step towards Competition, Energy Security and Climate Change
Objectives’ (2011) 39 Energy Policy 5839, 5403. However, they are all related to
energy-efficiency, which remains the paramount objective: European Parliament and
Council Directive 2012/27/EU of 25 October 2012 on energy efficiency, amending Directives
2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC [2012]
OJ L 315/1.

Journal of Law, Information and Science

Vol 24(1) 2016

literature has commented on the serious risks they present to the rights to
privacy/data protection, not least because their roll out is foreseen in the whole
EU.
3

4

The aim of this contribution is to explore the environmental aspect of smart
grids and smart meters, an issue that has so far been left fallow in the privacy
literature. An exploration of the smart grids’ environmental aspect is warranted
as it might lead to better privacy protection. In particular, it might allow for a
reconciliation to be achieved between two goals that appear to conflict from the
outset, namely, environmental and privacy protection.
It can be argued that current solutions protect our privacy only in a sub-optimal
way. We take the examples of The Netherlands and Germany where the
deployment of smart grids has already started. In both these countries
strategies to mitigate the privacy dangers have been put in place. However, as
demonstrated below, both these initiatives are not void of shortcomings. This
tends to point to a potentially irreducible conflict between smart meters’ goal of
environmental protection and the need to protect our privacy. Yet, this
potentially irreducible conflict might simply descend from the fact that
strategies trying to reconcile these goals only do so from a privacy perspective,
leaving the environmental aspect of smart grids unquestioned and untouched.
Because smart grids contribute to environmental protection, it is argued that
they promote the principle of sustainable development. An exploration of the
principle of sustainable development is therefore warranted. Such exploration
will be conducted in two steps. The first step will reveal that sustainable
development is not only a principle of environmental protection, but also
includes social, and economic dimensions. It therefore encompasses the full
spectrum of human rights and hence, requires that they be reconciled. The
second step will show that in addition to being a multi-dimensional principle,
there is more than one approach to the environmental protection aspect of
sustainable development. Drawing from the discipline of sustainability science,
a distinction can be drawn between a weak and a strong approach to
sustainability. In a nutshell, a weak approach to sustainability argues that the
protection of the environment does not require a decrease in our use of natural
resources in absolute terms, as long as this can be compensated by technology.
A strong approach to sustainability argues on the contrary that in spite of
technological progress, there are some limits to the use of natural resources that
cannot be trespassed, and that the only meaningful way to safeguard the
environment is to contain the use of natural resources within certain limits. On
the basis of this distinction, it will be demonstrated that the current energy
3

4

We use the expression “privacy/data protection”, or either term indistinctively
because we believe that the two rights are different, but overlap nonetheless: Raphaël
Gellert and Serge Gutwirth, ‘The Legal Construction of Privacy and Data Protection’
(2013) 29 Computer Law & Security Review 522, 522–530.
European Parliament and Council Directive 2009/73/EC of 13 July 2009 concerning common
rules for the internal market in natural gas and repealing Directive 2003/55/EC [2009] OJ L
211/94; European Parliament and Council Directive 2009/72/EC of 13 July 2009
concerning common rules for the internal market in electricity and repealing Directive
2003/54/EC [2009] OJ L 211/55.

EAP 2

Redefining the smart grids’ smartness.

efficiency approach that smart grids embody is only a weak approach to
sustainability.
The fact that smart grids presently take a sub-optimal approach to
environmental protection might account for the privacy issues they encounter.
In other words, as they currently stand, smart grids will provide neither
adequate environmental protection nor adequate privacy protection. This
contribution will therefore conclude by suggesting that “real smartness” would
be for the grids to implement a strong approach to sustainability, as only this
approach might allow for a genuine reconciliation between the goals of
environmental protection and privacy/data protection.

2

The alpha and omega of the debate: the conflict between
environmental goals and privacy protection

2.1 Smart meters and grids goals and functions
Smart meters and smart grids are innovations the goal of which is to achieve
energy-efficiency. According to the European Commission, eco-efficiency can
be defined as:
5

a paradigm shift to change the behavioural patterns of our societies so that we
use less energy while maintaining our quality of life; or as a way to improve the
environmental performance of products [and] to increase the demand for more
sustainable goods while encouraging EU industry to take advantage of
opportunities to innovate.
6

Eco-efficiency can thus be defined as the improvement of products’ energy
consumption leading to improved environmental protection. It can be traced
back to what some have coined “green growth”.
7

The European Commission has now long recognised the role that information
and communication technologies can play with respect to energy efficiency. Its
2009 Recommendation on Mobilising Information and Communication Technologies to
Facilitate the Transition to an Energy-Efficient, Low-Carbon Economy is probably its
milestone document. It advocates for the use of ICT4EE in the fields of
buildings, transport, electricity grids, and cities more generally.
8

5

6

7

8

It is to be noted that “energy-efficiency” is sometimes replaced by synonymous
expressions such as “eco-efficiency”, or even “resource-efficiency”. We therefore use
these terms interchangeably.
Commission Recommendation of 9 October 2009 on Mobilising Information and
Communications Technologies to Facilitate the Transition to an Energy-Efficient, LowCarbon Economy [2009] C(2009) 7604 final, 2, 2-3.
OECD, Greener and Smarter - ICTs, the Environment, and Climate Change (September
2010) OECD, 6 <http://www.oecd.org/site/stitff/45983022.pdf>.
Commission Recommendation of 9 October 2009 on Mobilising Information and
Communications Technologies to Facilitate the Transition to an Energy-Efficient, LowCarbon Economy [2009], C(2009) 7604 final, 2, 3, 8.

EAP 3

Journal of Law, Information and Science

Vol 24(1) 2016

Smart grids and meters contribute to energy efficiency in different ways. Smart
meters are basically a technology for the management of energy consumption,
and are therefore meant to lead to behaviour and consumption pattern changes.
Most of what they do is provide information concerning the use and price of
electricity in real time or at very regular intervals. Several factors influence
whether this information actually results in behavioural change. These include
the manner in which users receive feedback (eg via the internet or on in-house
displays, where in the house the meter is located, etc), or the ease with which
users can modify their consumption (through which devices, at home or
remotely, etc). However, they also improve the environmental performances of
the grid itself insofar as they are the link between the electricity providers and
the smart appliances. The automation and remote control of domestic
appliances enables electricity providers to balance the electricity load across
different times of the day. For instance they can automatically configure
appliances depending upon the availability and price of energy, as well as the
energy needs of the devices (eg a dishwasher is more flexible than lighting the
living room).
9

10

11

Unlike smart meters, which are the component of the smart grid specifically
dedicated to the management of energy consumption, the goal of smart grids is
to improve the overall environmental performances of the grid. To this end,
they can impact upon several elements of the grid. These include:

Energy generation (through renewable energy sources either from
energy distributors or from consumers themselves);

Energy transmission and distribution (by improving the quality and
security of the network in order to avoid losses);

Energy storage solutions (eg the battery of electric vehicles can be used
as a virtual power plant, a kind of localised energy storage system); and

Energy consumption (this is done through the smart meter, see above).

12

It is to be noted that the definition of smart grids is in itself problematic, and
that many definitions exist. This is because it remains at this stage an emerging
technology that is being implemented in a variety of ways in a variety of
different places. As the OECD puts it, the smart grid is not a product, but
rather, a continuous process of modernising existing electricity grids.
13

14

9

OECD, above n 7, 7.

10

Ibid 37.

11

Ibid 31.

12

Ibid 31–33.

13

14

Smits et al, ‘Working Paper on the State-of-Art of Assessments of the Societal Impacts
of Smart Grids’ (Deliverable No 6.1, EU-FP7 EPINET Project, 31 October 2012) 6-9.
Hence the OECD refers to the definition of the International Energy Agency, which
defines smart grids as an

EAP 4

Redefining the smart grids’ smartness.

2.2 Privacy and data protection risks
As an information and communication technology, smart grids and meters
inevitably process personal information. Such processing is not privacy or data
protection risk-free. Kloza, Van Dijk and De Hert argue that the risks stem
mainly from the meter as a component of the grid, arguably because it is the
device processing data from consumers. These meters constitute a radical
change compared to data collection practices occurring under the previous
“dumb” meters, the latter being read only infrequently (eg annually).
According to the European Data Protection Supervisor (‘EDPS’), smart meters
allow for much more detailed readings of energy consumption data, down to
the hour, quarter of an hour, or even shorter intervals.
15

16

These processing capabilities present important risks. Cuijper and Koops argue
that what is at stake here is the inviolability of the home as well as the right to
family life (both of which are elements of the right to privacy enshrined in art
8.1 of the European Convention on Human Rights (‘ECHR’), which hallows
one’s right to ‘private and family life, his home and his correspondence’),
because smart meters make it possible to access data concerning what is taking
place within the home. As they put it, ‘smart meters are a new example of
technology that makes it possible to see from the outside what takes place
inside homes and, all things considered, turns it into the proverbial glass
house’. Indeed, much information can be deduced from the meter, either
directly or indirectly. One can mention the following: when a person is at home;
17

18

electricity network that uses digital and other advanced technologies to monitor and
manage the transport of electricity from all generation sources to meet the varying
electricity demands of end-users. Smart grids co-ordinate the needs and capabilities of all
generators, grid operators, end-users and electricity market stakeholders to operate all
parts of the system as efficiently as possible, minimising costs and environmental impacts
while maximising system reliability, resilience and stability.

OECD, above n 1, 10. From this perspective, the smart grid is less a technology in
itself than a combination of different technologies (including smart meters,
intelligent storage devices, sensors and communication networks), the point being to
circulate electricity and information flows in a bi-directional manner so as to
optimise energy supply, demand, and storage: OECD, above n 7, 32. The provisional
and indeterminate nature of the grid seems to comfort other analyses that argue that
smart meters are not necessarily indispensable to smart grids. However, we base
ourselves on the implementation of smart meters at EU level where they are present
as one of smart grids’ constitutive elements.
15

16

17

18

Kloza, Van Dijk and De Hert, above n 1, 16.
European Data Protection Supervisor, Opinion of the European Data Protection
Supervisor on the Commission Recommendation on preparations for the roll-out of smart
metering systems (8 June 2012) European Data Protection Supervisor, 5
<https://secure.edps.europa.eu/EDPSWEB/webdav/shared/Documents/Consulta
tion/Opinions/2012/12-06-08_Smart_metering_EN.pdf>.
Colette Cuijpers and Bert-Jaap Koops, The “Smart Meters” Bill: A Privacy Test Based on
Article 8 of the ECHR Study Commissioned by the Dutch Consumers’ Association (October
2008)
Tilburg
Institute
for
Law,
Technology,
and
Society,
14
<https://skyvisionsolutions.files.wordpress.com/2014/11/dutch-smart-metersreport-tilt-october-2008-english-version.pdf>.
Ibid 22.

EAP 5

Journal of Law, Information and Science

Vol 24(1) 2016

whether the occupant of the house comes back home accompanied (later arrival
at home than usual, and higher energy consumption the morning thereafter);
whether a person is absent for a longer period than usual; the types of
electronic devices in use; the activities people engage in when using these
devices; or even whether the electronic products are new or near the end of
their product lives. Research has shown that it is even possible to know what
programme or movie is being watched on television.
19

20

Another important concern is that of security breaches. Just like any digital
device, smart meters can be breached and this may have important
consequences if burglars were to find out when the household is empty for
instance. This risk is especially acute because the meters allow for remote
reading.
21

In addition to tracking people in their everyday lives, another risk is that of
building user profiles, since smart meters can also provide a detailed
breakdown of energy consumption over long periods of time, thereby showing
usage patterns. These profiles can be built on the basis of individual
households, but also on the basis of several, which can be aggregated, and then
sorted by area, demographics, etc. These profiles are in turn applied back to a
household and its members. For instance, energy suppliers might engage in
price discrimination or in any other commercial action that benefits them. They
might even remotely deny service (partially or totally) in the case of late
payment. Further, as the techniques and algorithms of profiling such as data
analysis, data mining, or data cross-matching are opaque, this reinforces the
informational asymmetry existing between consumer and energy supplier; the
former having little to no clue at all as to what is being done with their data. In
22

23

24

25

26

19

20

21

22

Ibid 17, 21, 22.
Ulrich Greveler, B Justus and D Loehr, Multimedia Content Identification through Smart
Meter
Power
Usage
Profiles
(2012)
Ruhr-Universität
Bochum
5-7,
<http://www.nds.rub.de/media/nds/veroeffentlichungen/2012/07/24/ike2012.pd
f>.
European Data Protection Supervisor, above n 16, 5.
Ibid. For example: what time people sleep and wake up; whether they have guests
during their leisure time; how often they do their laundry; if someone uses a specific
medical device or a baby-monitor; whether someone has developed a specific
medical condition; if anyone suffers from insomnia; and even whether married
couples sleep in the same room.

23

Ibid.

24

Cuijpers and Koops, above n 17, 17.

25

European Data Protection Supervisor, above n 16, 6.

26

Gloria González Fuster and Amandine Scherrer, Big Data and Smart Devices and Their
Impact on Privacy, (September 2015), Study PE 536.455 to the Civil Liberties, Justice
and
Home
Affairs
Committee
of
the
European
Parliament
21,
<http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536455/IPOL_ST
U(2015)536455_EN.pdf>. Gonzalez and Scherrer have made this remark in the
context of big data uses for the so-called Internet of Things (IoT), of which smart
grids are seen as an important component. See also Cuijpers and Koops, above n 17,
25.

EAP 6

Redefining the smart grids’ smartness.

addition, profiles can be used for many other purposes. As a matter of fact,
information about energy usage is of high value to a number of third parties
including commercial companies. Often, these companies already know what
goods consumers buy. Smart meter data enables them to know where, when,
and how their products are being used. This additional information can then be
used for targeted and personalised marketing and advertisement. There are
also many other interested third parties, including law enforcement agencies,
tax authorities, welfare and social authorities, insurance companies (who can
for example establish specific usage requirements or require access to meter
data if they are to underwrite their policy), landlords, and employers just to
name a few. This raises many risks to the rights to privacy and data protection.
27

28

29

As far as the right to privacy is concerned, it remains to be seen whether these
data processing capabilities are compatible with art 8.2 of the ECHR, which
spells out the conditions under which it is possible to interfere with the right to
privacy. Namely, the interference must be prescribed by law, serve at least one
of the public interest goals provided by the article (eg national security, public
safety, economic well-being of the country, prevention of disorder or crime,
etc), and be necessary in a democratic society and proportionate to the
legitimate aim pursued (which includes the test as to whether there is no
alternative, less intrusive solution). The answer to these questions depends
very much on each specific case, but there is no doubt that the various
processing operations the meters render possible put the necessity and
proportionality criteria under high pressure as shown in the Dutch case (see
below).
30

31

27

28

29

30

European Data Protection Supervisor, above n 16, 5–6.
Belgium for instance has recently adopted legislation empowering utilities providers
to forward metering data of those receiving social benefits to those social services
providing the benefits: Loi modifiant la loi-programme (I) du 29 mars 2012 concernant le
contrôle de l'abus d'adresses fictives par les bénéficiaires de prestations sociales, en vue
d'introduire la transmission systématique de certaines données de consommation de sociétés
de distribution et de gestionnaire de réseaux de distribution vers la BCSS améliorant le
datamining et le datamatching dans la lutte contre la fraude sociale, [Law amending the
law of 29 March 2012 concerning the control of the abuse of fictitious addresses by
recipients of social benefits, with a view to introduce the systematic transmission of
certain metering and grid data to the Central Bank of Social Security in order to
improve data mining and datamatching in the fight against social fraud], (Belgium),
27 May 2016, OJ, 2016, No. 2016202481.
European Data Protection Supervisor, above n 16, 6; Cuijpers and Koops, above n 17,
26.
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for
signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)
(‘ECHR’), Art. 8.2 provides that:
There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.

31

Cuijpers and Koops, above n 17, 25–34; Kloza, Van Dijk and De Hert, above n 1, 23.

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Vol 24(1) 2016

As far as the right to data protection is concerned a number of principles are
also at risk. For instance, the determination of what counts as a legal basis for
the processing of data in the first place; how much data is necessary for
performing each task and how long it should be stored for (principles of data
minimisation and data retention); in the case of third party access, what
safeguards should be in place, if any, in addition to consumer consent, and how
can one prevent the re-purposing of such data; and what security measures,
such as data breach notification mechanisms, should be put in place? Finally,
how can data subjects exercise their rights adequately, and in particular how is
meaningful transparency to be achieved (which directly affects the quality of
the consent one can give)?
32

33

3

The mitigation measures taken

This section will focus upon the Dutch and German attempts to address these
privacy issues. The Dutch case is an interesting example of how to strike a
proper balance between the need for privacy protection and the environmental
objectives of the smart meters. The German case is interesting insofar as
Germany has implemented arguably the most advanced privacy by design
measures. Yet, both cases present shortcomings, so that it appears quite difficult
to find a way to uphold both citizens’ privacy and the meters’ environmental
goals.

3.1 The search for balance in the Netherlands
3.1.1 The first project
Cuijpers & Koops recount the introduction of smart meters in The
Netherlands. In 2008, two smart grids bills (the Bill transposing EC Directive
2006/32 on Energy Efficiency, and the Bill amending the Electricity Act 1998 and
Gas Act to improve the operation of the electricity and gas markets) provided
for the mandatory introduction of smart meters in every Dutch household as
well as for hourly measurements of gas and quarter-hourly measurements of
electricity to be transmitted directly to network operators. These measurements
would then have to be forwarded to the energy supplier who would use the
data to provide consumers with detailed information regarding their energy
consumption so that they could modify their behaviour in the interests of
34

32

33

34

Rainer Knyrim and Gerald Trieb, ‘Smart Metering under EU Data Protection Law’
(2011) 1 International Data Privacy Law 121, 121; European Data Protection Supervisor,
above n 16, 10–11.
European Data Protection Supervisor, above n 16, 12–15; Article 29 Data Protection
Working Party, 'Opinion 12/2011 on smart metering' (Working Paper No 183, 4 April
2011), 16-21; González Fuster and Scherrer, above n 26, 21. More broadly, see also
Mireille Hildebrandt, Report for the Smart Energy Collective, Legal Protection by Design
in
the
Smart
Grid,
(February
2013)
30-44
<https://pilab.nl/wpcontent/uploads/2013/05/KEM-64P707-BRO-LPbD-in-SmartGrid_A4_FC_v4.pdf>
Colette Cuijpers and Bert-jaap Koops, ‘Smart Metering and Privacy in Europe:
Lessons from the Dutch Case’ in Serge Gutwirth et al (eds), European Data Protection:
Coming of Age (Springer, 2013) 269, 278–281.

EAP 8

Redefining the smart grids’ smartness.

greater energy efficiency. Following the Dutch data protection authority’s
recommendation, the Minister of Economic Affairs amended the proposal so
that network operators can only transmit daily measurements to energy
suppliers, with consent required for finer grained measurements (ie hourly and
quarter-hourly).
35

In the wake of the adoption of the Bills by the Second Chamber, the Dutch
Consumer Union commissioned a critical study that highlighted two main
issues. Both the measurements frequency and communication thereof, as well
as the mandatory nature of the roll out were not deemed necessary in a
democratic society in accordance with the test contained in art 8.2 of the ECHR.
They thus violated the Convention. The Commission concluded by saying that
less privacy intrusive alternatives should be found without jeopardising
environmental goals. It referred to alternatives that process less data, or that
process anonymous or aggregated data for instance. This led to the rejection of
the proposed Bills by the First Chamber and to subsequent modifications.
36

37

38

39

3.1.2 Revised Version
The modified version of the Bill, issued in 2011, ends the compulsory nature of
the meters (consent is required). More importantly for our discussion, the level
of personal data processing has been critically diminished. In a nutshell, the
standard measurement regime does not provide for daily measurements to be
transmitted to suppliers and operators. Detailed measurements of this kind can
be transmitted if, and only if, consumers have consented thereto.
40

3.1.3 Privacy proof?
Referring to the proportionality test of art 8.2 of the ECHR according to which
any measure interfering with the right to privacy should be ‘necessary in a
democratic society’, Cuijpers & Koops salute the abolition of these very detailed
readings, which, according to them, has taken ‘the largest privacy sting out of
the Dutch law’. Yet, one should not conclude that the current versions of the
Dutch Bills are privacy compliant merely because the most obvious violations
of art 8 of the ECHR have been addressed. We do not dispute the abandonment
of obviously unnecessary data processing that consisted of the transmission of
41

35

36

37

38

It is to be noted that in addition to these measuring and communication
functionalities, the meter also included signalling, switching, and regulatory
functions respectively allowing operators to detect energy quality remotely, remotely
switch the energy facilities (eg fraudulent customers), and add functions to the
meters: ibid 279.
Cuijpers and Koops, above n 17, 3.
ECHR art 8.1 establishes the right to privacy, whereas ECHR art 8.2 provides the
conditions under which interferences are lawful.
In addition, too little evidence was provided as to the necessity of the remote
switching and signalling functions.

39

Cuijpers and Koops, above n 34, 281.

40

This also holds true for more fine-grained measurements.

41

Cuijpers and Koops, above n 34, 284.

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very detailed personal data to grid operators. However, this does not put an
end to the measurements as such, which are a critical element of energy
efficiency.
42

43

Referring to another component of the proportionality test of art 8.2 of the
ECHR (namely the substitution principle), Cuijpers & Koops remark at several
points that it is necessary to ‘look at alternatives that are less privacy-invasive
but that still serve the intended purposes of smart metering’. According to
them, such alternatives are to be found in privacy by design measures to be
applied to the remaining necessary processing. If it is indeed true that some of
the data processing is obviously unnecessary, additional privacy relevant
questions remain. One such relevant question concerns the way to access the
data. Ideally, this will be done through an in-house display. However, the value
of such a solution is doubtful in the face of other settings that imply third party
access. This is the case for Internet access, which presents undeniable
advantages for consumers. This is also the case for other functionalities of the
grid, including dynamic pricing and/or load balancing, both of which require
that measured consumption data be fed back into the grid.
44

The Dutch case therefore points to a conflict between privacy protection and the
environmental goal that cannot be totally reconciled. Even when unnecessary
processing is discarded, processing that potentially violates art 8 of the ECHR
remains. Further, from this privacy centric perspective, the only alternatives
envisaged are privacy by design initiatives that focus on minimising data flows.
Yet, as the German case perfectly epitomises, this approach presents
shortcomings too.

3.2 German design
The Dutch case demonstrates that there might be an irreducible conflict
between the privacy and environmental goals of smart grids. The German case
will show the limits of privacy by design approaches.
3.2.1 The design and its benefits
The following analysis is based on Pallas’ description of the German system
and in particular, on his description of the attempts made in the amended
German energy legislation to introduce elements of privacy by design for smart
metering. The German approach intends to implement privacy by design in
45

42

43

44

45

Although some representatives of Dutch grid operators go further in saying that
meters should be allowed to transmit measurement data to grid operators on a
quarterly-hour basis. Any lower frequency would render the energy saving function
void.
What Cuijpers & Koops refer to as ‘private data exported through the interface to the
end user’: Cuijpers and Koops, above n 34, 287.
Ibid 289.
Frank Pallas, ‘Beyond Gut Level - Some Critical Remarks on the German Privacy
Approach to Smart Metering’ in Serge Gutwirth et al (eds), European Data Protection:
Coming of Age (Springer, 2013) 313, 319–321.

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smart meters by granting individuals control over their data and by
implementing the data minimisation principle.
46

This is achieved mainly through an additional technical element known as the
“smart meter gateway”, which acts as a buffer between the individual’s smart
meter and the grid operators. This additional technical element has several
consequences for the electricity grid structure. Instead of the chain-formed
communication model used in other countries, the German model is starshaped. This allows for end-to-end communication between the gateway (ie the
user) and market actors, and thus for the use of privacy enhancing technologies
such as encryption and pseudonymisation.
47

48

Measured data is stored locally within the gateway, which grants access to the
different actors on the sole basis of their data needs (ie receiver specific access
profiles). This is critical for the execution of access profiles. Each actor has
specific data needs in terms of data forms, purposes, and so on. For instance,
the distribution system operator (‘DSO’) may have a need for real time data for
its network maintenance mission, but it suffices that such data be in aggregated
form. As a consequence, these access profiles define what data is to be
transferred to whom, at what frequency, after what type of pre-processing,
using what type of encryption (and other privacy enhancing technologies), and
so on. Such an approach upholds both the data minimisation and control
principles.
49

Because measured data is locally stored, the gateway can perform preprocessing operations, which greatly contributes to data minimisation. Taking
the case of highly dynamic, weather-dependent pricing, the gateway will be
able to perform the necessary tariffing. This means that suppliers will only
need aggregated data for their billing purposes no matter how dynamic the
pricing is.
50

51

46

47

48

49

50

51

Ibid 325.
Which is based upon a linear chain of processing where the data is first transmitted
to the metering point operator who collects long term measurement values. He then
passes it to the local distribution system operator who performs pre-processing
operations (as well as archiving, and generation of aggregated load graphs). The
distribution system operator then passes on this data either to the transmission
system operator for system maintenance (including load balancing), or to the
supplier for billing purposes.
Although this might require the intervention of an intermediary grid operator in
order not to track back the data: Pallas, above n 45, 328. On the fact that Privacy
Enhancing Technologies (‘PETs’) were first dealing with anonymity see: Herbert
Burkert, ‘Privacy-Enhancing Technologies: Typology, Critique, Vision’ in Philip E
Agre and Marc Rotenberg (eds), Technology and Privacy: The New Landscape (The MIT
Press, 1997) 125, 126–129.
The same holds true for the transmission system operator’s (‘TSO’) duty of load
balance.
One must also add the complete ex ante definition of legitimate data processing
within the law: Pallas, above n 45, 327.
This is done by summing up all consumption data for each tariff and by submitting
aggregated values of the tariffs to the supplier on a monthly basis.

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3.2.2 Limits of design
These privacy by design elements are without doubt a step in the right
direction. However, as Pallas shows they are far from flawless. As far as the
local pre-processing is concerned, Pallas indicates that it does not take into
account some probable future modi operandi of the electricity grid, or some of
its additional energy efficiency functionalities. For instance, network fees
currently depend solely on actual consumption, but if they were also rendered
dynamic so as to optimise the grid’s functioning, it is doubtful whether the
gateway has the necessary local pre-processing capacities to facilitate this.
Similarly, as far as the supplier is concerned, current pre-processing functions
allow for billing on the basis of aggregate data of dynamic consumption
patterns. However, one of the other aims of the grid is load balancing of the
energy supply. Yet, without real time feedback of consumption data this
exercise is not possible. At present there is still uncertainty as to whether the
gateway has the capacities for this type of processing, although the answers
tend to be negative. If the need for local pre-processing is real as far as control
over one’s own data is concerned (there is little to no possibility of control once
the data has left one’s own device), the model is flawed as far as the other
functions and needs of the smart grid are concerned.
52

53

Load peak balancing is problematic here too. The main issue is that it requires
data to be fed back into the grid, which both the supplier and the DSO need.
Under the local gateway model, the transmission system operator (‘TSO’)
would be responsible for receiving the data and feeding it back into the system.
Beyond the issue of knowing whether it is possible to feed aggregate data or
not, another important area of concern is that the TSO would receive massive
amounts of data to be redistributed. So far the only alternative would be to
entrust the DSO (who operate at local level, see above) with the data, but that
would mean adopting the chained communication model, which is in direct
contradiction with the German end-to-end communication model.
54

3.3 The impossibility of reconciling privacy and environmental
protection
These two national experiences indicate that the implementation of current
smart meter technology still puts citizens’ privacy at risk, so that it is doubtful
whether privacy can be reconciled with the environmental goals of the grid. In
particular, the Dutch case demonstrates that it is possible to do away with
manifestly unnecessary processing in pursuit of both privacy and
environmental protection. However, the Dutch have carefully avoided
52

Pallas, above n 45, 333-338.

53

Ibid 336.

54

Ibid 341–342. Pallas hints at solutions but also notes their potential shortcomings.
Setting up data trustees who would be in charge of all the necessary pre-processing
(and be subject to all existing protections) would overcome the difficulties associated
with localised processing whilst still retaining possibilities for informational control.
However, such trustees would have to deal with massive centralised data pools,
unless several of them were to exist.

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answering the very tricky question as to whether the remaining processing is
proportionate and necessary. Alternatives based on privacy by design suggest a
negative answer to this question. Yet, the German case shows us the limits of
privacy by design approaches. Not only do they have several shortcomings on a
principle and conceptual basis, but their adequate implementation remains
uncertain and subject to many contingencies.
Building upon Burkert’s remark that the best data (and privacy) protection is no
data processing at all, an alternative solution must be developed. This solution
should conform to the spirit of the substitution principle in art 8.2 of the ECHR,
which requires states to find alternatives that go beyond simple diminution of
the amount of data processed (and/or its anonymisation, aggregation, etc), and
instead to look for another articulation of the privacy and environmental goals
that might permit their genuine reconciliation. In our opinion this entails
looking at the environmental side of things.
55

56

4

The quest for alternatives through a detour in environmental
law: the principle of sustainable development

4.1 Introduction
We contend that the principle of sustainable development can be instrumental
in finding better privacy preserving alternatives. This entails two steps. The
first step involves defining the principle. This definition will show that
sustainable development is not limited to environmental protection, but that on
the contrary, it has three dimensions: environmental; social; and economic. As a
consequence, sustainable development also encompasses the protection of the
full spectrum of human rights. This is evident from the following discussion
concerning the manner in which the EU has upheld the principle. This
discussion also shows that in addition to providing a holistic approach to the
principle, the EU relies solely on energy efficiency for implementing the
environmental protection aspect.
The second step consists of a critical look into the “energy efficiency paradigm”.
This is done through the study of one of the sustainable development
disciplines known as sustainability science. Sustainability science shows that it
is possible to distinguish between strong and weak approaches to
sustainability, and that energy efficiency amounts to only a weak approach to
sustainability.

55

56

Burkert, above n 48, 136.
On the proportionality test of ECHR art 8.2, see Paul De Hert, ‘Balancing Security
and Liberty within the European Human Rights Framework. A Critical Reading of
the Court’s Case Law in the Light of Surveillance and Criminal Law Enforcement
Strategies after 9/11’ (2005) 1 Utrecht Law Review 68, 91-94; Katja de Vries et al, ‘The
German Constitutional Court Judgment on Data Retention: Proportionality
Overrides Unlimited Surveillance (Doesn’t It?)’ in Serge Gutwirth et al (eds),
Computers, Privacy and data protection: an Element of Choice (Springer, 2011) 3, 19-22.

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4.2 Definition of the principle: from the Bruntdlandt Report to the
United Nations
4.2.1 History of the principle
Sustainable development first appeared in the 1987 Bruntdlandt Report, and
was defined as ‘[economic] development that meets the needs of the present
without compromising the ability of future generations to meet their own
needs’. Such a broad definition is bound to create controversy and multiple
understandings. Therefore, a useful way to better appraise the concept is to
look at the way the United Nations (‘UN’) have institutionalised and defined
sustainable development.
57

58

The 1972 Stockholm Declaration on the Human Environment can be considered as
the precursor of sustainable development, which received official recognition
for the first time in the 1992 Rio Declaration on Environment and Development (‘Rio
Declaration’). Two Principles of the Rio Declaration are worthy of attention.
Principle 1 provides that human beings are at the centre of sustainable
development, which entitles them to a healthy and productive life in harmony
with nature. Principle 3 reflects the Bruntdlandt Report approach, namely that
‘the right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations’.
The Rio Declaration was accompanied by an action plan known as the Agenda
21 (with 21 standing for 21 century).
59

60

61

62

st

63

In the following decades, the UN has adopted two documents as official followups to the Rio Declaration. The first is the Johannesburg Declaration on Sustainable
Development, which is the document resulting from the 2002 World Summit on
64

57

58

59

60

World Commission on Environment and Development, Our Common Future (Oxford
University Press, 1987), 27.
A parallel can be made between privacy and sustainable development insofar as both
notions are very broad, and resist strict interpretations.
Report of the United Nations Conference on the Human Environment, Held in Stockholm
from 5 to 16 June 1972, UN Doc A/CONF.48/14/Rev.1 (1973).
Report of the United Nations Conference on Environment and Development, Held in Rio de
Janeiro from 3 to 14 June 1992, UN Doc A/CONF.151/26 Vol. I (12 August 1992) (‘Rio
Declaration’).

61

Ibid.

62

Ibid.

63

Ibid Resolution 1, Annex II.

64

In addition to these, the UN has adopted a number of instruments that relate to
specific aspects of sustainable development. These include the United Nations
Millennium Declaration, GA RES 55/2, UN GAOR 55 session, 8 plen mtg, Agenda
Item 60 (b), UN DOC A/RES/55/2 (8 September 2000); as well as its follow-up
Transforming our world: the 2030 Agenda for Sustainable Development, GA RES 70/1, UN
GAOR 70 session, 4 plen mtg, Agenda Items 15 and 116, UN DOC A/RES/70/1 (25
September 2015); and the United Nations Framework Convention on Climate Change,
opened for signature 4 June 1992, 1771 UNTS 30822 (entered into force 21 March
1994).
th

th

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th

th

Redefining the smart grids’ smartness.

Sustainable Development (‘WSSD’) held in Johannesburg and marking the 10
anniversary of the Rio Declaration (as well as evaluating the progress made since
then on the basis of the Agenda 21). The second is The Future We Want
Resolution, which is the result of the United Nations Conference on Sustainable
Development (‘UNCSD’), also known as Rio 2012, Rio+20, or Earth Summit
2012, the goals of which were largely similar to the Johannesburg Summit (ie
assessing progress and addressing new challenges).
th

65

66

4.2.2 Sustainable development is a multidimensional principle
Sustainable development is multidimensional. In particular it has three
constitutive dimensions: environmental; social; and economic. This was
already quite clear in the Rio Declaration. Principle 5 for instance provides that
the eradication of poverty is an indispensable requirement for sustainable
development (social dimension); Principle 8 pledges to ‘reduce and eliminate
unsustainable patterns of production and consumption and promote
appropriate demographic policies’ (economic dimension); and Principle 4 states
that ‘environmental protection shall constitute an integral part of the
development process and cannot be considered in isolation from it’
(environmental dimension).
67

68

The latest UN sustainable development document, The Future We Want
Resolution, provides some additional insight as to the content of the principle.
First, it reiterates the overarching goals and essential elements of sustainable
development, which consist of ‘poverty eradication, changing unsustainable
and promoting sustainable patterns of consumption and production, and
protecting and managing the natural resource base of economic and social
development’. However, it goes further, insofar as, building upon the human
centric dimension of Principle 1 of the Rio Declaration, it argues that sustainable
development is also about ‘a world that is just, equitable and inclusive’. The
Future We Want Resolution therefore argues that respect for all human rights (as
well as the rule of law and democracy) is at the core of the principle of
sustainable development. This includes both second generation human rights,
such as the right to food or to sustainable living, and first generation human
69

70

71

65

66

67

68

Report of the United Nations World Summit on Sustainable Development, Held in
Johannesburg from 26 August to 4 September 2002, UN Doc A/CONF.199/20 (2002).
The Future We Want, GA RES 66/288, UN GAOR 66 session, 123 plen mtg, Agenda
Item 19, UN DOC A/RES/66/288 (27 July 2012) (‘The Future We Want Resolution’).
th

rd

Stephen A Roosa, Sustainable Development Handbook (The Fairmont Press, 2 ed, 2010)
35–79. See also: The Future We Want Resolution para 1, which pledges to ensure ‘the
promotion of an economically, socially and environmentally sustainable future for
our planet and for present and future generations’.
nd

See also Principle 7 of The Future We Want Resolution according to which States must
‘conserve, protect and restore the health and integrity of the Earth’s ecosystem’.

69

The Future We Want Resolution para 4.

70

Ibid para 6.

71

Ibid paras 8-9.

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rights as epitomised by the reaffirmed commitment to the Universal Declaration
of Human Rights.
72

4.3 The
EU’s
definition
of
sustainable
development
multidimensional and based upon energy efficiency

is

This section explores the manner in which the EU has implemented sustainable
development, through its sustainable development strategy (‘SDS’). The EU’s
SDS describes the sustainable development principle as:
73

an overarching objective of the European Union… [which consists of]
safeguarding the earth's capacity to support life in all its diversity and is based
on the principles of democracy, gender equality, solidarity, the rule of law and
respect for fundamental rights, including freedom and equal opportunities for
all.
74

In order to render this broad definition more workable, the EU has broken it
down into four key objectives, ten policy principles, and seven key challenges.
In a nutshell, the four key objectives represent the actual content of the
principle. Namely they are: environmental protection, social equity and
cohesion (ie respect for all human rights), economic prosperity, and the
meeting of international responsibilities. The ten policy principles are relevant

75

76

77

78

79

72

73

74

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd session
183rd plen mtg, UN Doc A/810 (10 December 1948).
Communication from the Commission on A Sustainable Europe for a Better World: A
European Union Strategy for Sustainable Development, [2001] COM(2001)264 final, 2, 2-3.
The Council of the European Union Renewed EU Sustainable Development Strategy, No
10917/06 (9 June 2006) 2:
[The principle of sustainable development is] an overarching objective of the European
Union set out in the Treaty, governing all the Union’s policies and activities. It is about
safeguarding the earth's capacity to support life in all its diversity and is based on the
principles of democracy, gender equality, solidarity, the rule of law and respect for
fundamental rights, including freedom and equal opportunities for all. It aims at the
continuous improvement of the quality of life and well-being on Earth for present and
future generations.

75

Ibid.

76

Ibid.
Safeguard the earth's capacity to support life in all its diversity, respect the limits of the
planet's natural resources and ensure a high level of protection and improvement of the
quality of the environment. Prevent and reduce environmental pollution and promote
sustainable consumption and production to break the link between economic growth and
environmental degradation.

77

78

79

Ibid. ‘Promote a democratic, socially inclusive, cohesive, healthy, safe and just
society with respect for fundamental rights and cultural diversity that creates equal
opportunities and combats discrimination in all its forms.’ Ibid.
Ibid. ‘Promote a prosperous, innovative, knowledge-rich, competitive and ecoefficient economy which provides high living standards and full and high-quality
employment throughout the European Union.’
Ibid.

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principles to be applied in reaching the four key sustainable development
objectives. They include among others: promotion and protection of
fundamental rights; solidarity within and between generations; open and
democratic society; involvement of citizens; and involvement of businesses and
social partners.
80

Finally, the seven key challenges represent concrete areas of action for the
principle of sustainable development to be implemented. Namely they are:
climate change and clean energy; sustainable transport; sustainable
consumption and production; conservation and management of natural
resources; public health; social inclusion; demography; migration; and global
poverty. The 2009 review of the strategy adds additional challenges such as
energy security, adaptation to climate change, food security, land use, and
sustainability of public finances.
81

The analysis of the EU’s SDS is interesting in two respects. First, it is based
upon energy efficiency. This appears very clearly when analysing the key
objectives dealing with environmental protection. We observe that ecoefficiency is at the forefront and is instrumental to achieving the challenges of
climate change and clean energy, conservation of natural resources, etc. In this
regard, smart grids fit perfectly within several of these key challenges, and it is
therefore no wonder that they too are based upon energy efficiency. Second, it
follows that the EU’s conception of sustainability is quite broad and farreaching as it encompasses the three constituent domains of sustainability
referred to earlier (environmental, economic, and social). Like the UN, the EU
considers that sustainable development is about both environmental, and
economic and social justice, thereby reflecting concerns addressed by so-called
first and second generation human rights. It follows that sustainable
development is as much about environmental protection as it is about
82

‘Encourage the establishment and defend the stability of democratic institutions across
the world, based on peace, security and freedom. Actively promote sustainable
development worldwide and ensure that the European Union’s internal and external
policies are consistent with global sustainable development and its international
commitments.’
80

81

82

Ibid 4-5.
Communication from the Commission to the European Parliament, The Council, The
European Economic and Social Committee and The Committee of the Regions on
Mainstreaming Sustainable Development into EU Policies: 2009 Review of the European
Union Strategy for Sustainable Development, [2009] COM(2009) 400 final, 2, 14.
This stance has been confirmed time and time again in many policy documents. The
Eco-innovation Action Plan for instance clearly links eco-efficiency to environmental
and climate change concerns: Communication from the Commission to the European
Parliament, The Council, The European Economic and Social Committee and The Committee
of the Regions: The Eco-Innovation Action Plan (Eco-AP), [2011] COM(2011) 899 final, 2,
9-10. See also the roadmap to resource efficiency in which the vision for a resource
efficient Europe is described as follows: ‘By 2050 the EU's economy has grown in a
way that respects resource constraints and planetary boundaries. …All resources are
sustainably managed… Climate change milestones have been reached’: Communication from
the Commission to the European Parliament, The Council, The European Economic and
Social Committee and The Committee of the Regions: Roadmap to a Resource Efficient
Europe, [2011] COM(2011) 571 final, 1, 3 (emphasis added).

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safeguarding all fundamental rights. Environmental protection and privacy
thus need to be reconciled. Yet, as discussed above, this reconciliation is far
from obvious. Therefore, the next section of the paper will analyse sustainable
development as a means to critically analyse energy efficiency and its
contribution to environmental protection.

4.4 Sustainable development as a means for a critical look into energy
efficiency: strong vs weak sustainability
As we have seen above, the notion of sustainable development is a very open
one, and is susceptible to multiple and competing understandings. The EU has
chosen to turn to energy efficiency to implement the environmental aspect of
the principle. The question we ask here is whether energy efficiency is an
adequate implementation of sustainable development. Current privacy
violations indicate that this is not the case.
We turn to the field of science and technology studies (‘STS’), and in particular
to the emerging discipline of sustainability science in order to substantiate the
notion of sustainable development. The goal of sustainability science is to
interrogate whether, and if so how, science can contribute to sustainable
development. We consider this standpoint relevant since smart grids are a
scientific and technological innovation for sustainable development.
83

Sustainability science makes the claim that sustainable development is a valueloaded notion, which cannot escape ethical discussions. In particular, the
normative vision of sustainable development as formulated in the Brundtland
Report (see above), though very abstract, puts the emphasis upon the notions of
needs and limitations. The concept of needs refers to that of the future
generations and the idea that their needs should be fulfilled in the same fashion
as ours. Very much linked to this is the concept of limitations, which suggests
that the Earth’s resources are finite and that we should therefore limit our
behaviours in order to take account of these limits.
84

85

Putting the emphasis on needs and limitations allows for a reframing of
sustainable development as “the maintenance of capital”. It is generally agreed
that there are two types of capital: natural capital and human capital (which is
itself composed of cultural, institutional, social, technological, and economic
capital). From this perspective, sustainability can vary across a range of options:
weak, intermediate, and strong sustainability. Each position embodies a
different stance as to what constitutes an equitable use of capital (that is, to

83

84

85

Jill Jäger, ‘Risks and Opportunities for Sustainability Science in Europe’ in Carlo C
Jaeger, J David Tàbara and Julia Jaeger (eds), European Research on Sustainable
Development - Volume 1: Transformative Science for Sustainability (Springer-Verlag,
2011) 187, 190–192.
Tom Dedeurwaerdere, Sustainability Science for Strong Sustainability (Edward Elgar
Publishing, 2013) 11.
Ibid 29.

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what extent can we use resources and capital and still preserve the capital that
is essential for safeguarding the environment?).
86

Weak sustainability assumes full substitutability between natural and human
capital. Under this assumption neither the intrinsic limits of Earth’s resources,
nor the value of certain natural resources for the appropriate functioning of
basic ecosystems are taken into account. This approach leads to a development
policy focused on the exploitation of natural resources in a way that allows the
income gained from the exploitation thereof to remain sustainable through new
capital investments in spite of natural resources depletion. In other words, it
posits that the full depletion of natural resources is not an issue as long as it is
offset by investments in new scientific, technological, and economical capital.
Dedeurwaerdere gives the example of compensation for soil fertility loss
resulting from intensive agricultural practices. In order to compensate for these
losses, more efficient forms of farming such as mechanisation, irrigation and
fertilisers are deployed. However, these technological substitutes rely
themselves on non-renewable resources that are at the heart of the soil
depletion in the first place.
87

88

Conversely, strong sustainability acknowledges that ‘not all the functions of
natural capital can be replaced by technological/economic capital and… there
are critical levels beyond which substitutability is no longer possible.’ This is
the case for instance when critical thresholds are reached for the functionality of
living systems (eg fisheries’ ecosystems being threatened by intensive fishing);
when critical thresholds are reached for the assimilation of waste products (eg
greenhouse gasses in the atmosphere); or even when the exhaustion of natural
resources or environmental degradation beyond a certain threshold would
reach so-called “tipping points” of irreversible degradation, beyond which the
Earth’s ability to sustain us and other species could be threatened.
89

90

So, what is the use of this distinction between strong and weak sustainability
for our analysis of energy efficiency? Proponents of sustainability science argue
that energy-efficiency is an embodiment of weak sustainability. They evidence
this statement by demonstrating that it is based upon the assumption that
‘economic growth can be decoupled from material throughput through

86

Obviously it is not easy to determine the limits of substitutability: on what criteria
should it be based? Some refer to the preservation of living systems over time, others
to the maintenance of each capital independently, while others argue that no
substitution at all is permitted. This highlights the limits of scientific knowledge and
the need to integrate other types of knowledge such as local knowledge, a process
proponents of sustainability refer to as interdisciplinarity and transdisciplinarity. It
should indeed be kept in mind that respecting natural thresholds and limits is
something dynamic that needs to constantly be re-enacted and re-performed, so that
categories like weak or strong sustainability are not static but on the contrary,
dynamic.

87

Dedeurwaerdere, above n 84, 17-18.

88

Ibid 18.

89

Ibid.

90

Ibid.

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decrease of natural resources use in production systems, in particular by
technical innovation’. Put in other words, energy-efficiency implements weak
sustainability because it assumes that technological innovation coupled with
behavioural change will ensure that continued growth and use of natural
resources are compatible with environmental protection. It thus assumes that a
continuing exploitation and decrease of natural capital is sustainable insofar as
it can be perfectly substituted by a continued growth in human capital.
91

92

It appears from the observation above, however, that it is highly doubtful that
energy-efficiency can properly implement sustainable development. Indeed, in
order to have meaningful sustainable development, understood as the
maintenance of natural capital, what matters is the absolute reduction of the use
of natural resources, that is, the absolute decoupling of human and natural
capital. This is the only way to ensure that critical thresholds are not trespassed,
and thus, to safeguard natural capital. However, by promoting fullsubstitutability, energy efficiency leads to a relative decoupling of natural and
human capital, meaning that the extent of the substitution between natural and
human capital bears little to no influence on the actual use and depletion of
natural resources.
In order for absolute decoupling to occur under the energy-efficiency scheme,
the rate of eco-efficiency improvement must be large enough to offset the
growth rate of natural resources use. However, evidence suggests that (relative)
decoupling of economic growth from natural resources uses shows mixed
results at best. In the case of smart grids, early research has shown that the
energy efficiency gains are not obvious at all. They depend upon a number of
factors such as whether consumers have adequate access to the right type of
consumption information, and the consumers’ personal propensity towards
saving energy. Further, even when energy efficiency gains are made, the most
optimistic figures indicates gains of up to 15%. Arguably, this is far from
enough in order to achieve absolute decoupling.
93

94

Furthermore, in order for energy efficiency to contribute to the diminution in
the use of natural resources, the efficiency gains should be “captured” and
“dedicated” to reducing the absolute use of resources. Yet, the market is
structured and oriented in a way that ensures that efficiency gains will be
dedicated to further growth, in an attempt to stimulate increased consumer
demand. This process does not factor in the intrinsic limits descending from
critical thresholds of natural capital. Such an observation certainly applies to
95

91

92

93

Paul M Weaver, ‘Pragmatism and Pluralism: Creating Clumsy and Context-Specific
Approaches to Sustainability Science’ in Carlo C Jaeger, J David Tàbara and Julia
Jaeger (eds), European Research on Sustainable Development - Volume 1: Transformative
Science for Sustainability (Springer-Verlag, 2011) 173, 177.
Ibid.
For example, even though carbon emissions from fossil fuels have increased more
slowly than the increase in economic activity, they were still 40 % higher in 2007 than
in 1990: Dedeurwaerdere, above n 84, 17-22.

94

Cuijpers and Koops, above n 17, 27-28.

95

Dedeurwaerdere, above n 84, 21.

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smart grids, which energy suppliers and operators see as a new market bearing
promises of increased profitability.
96

Finally, energy efficiency gains can paradoxically also result in increases in
energy use at the individual level through the so-called rebound effect. For
example, a 5% improvement in vehicle fuel efficiency might only result in a 2%
drop in fuel use, because the increased efficiency encourages drivers to go faster
or use their car more often than they previously used to. In the case of smart
grids, some have observed a sort of “smart grid fatigue” where, after a while,
consumers abandon the “virtuous” energy saving behaviour upon which smart
grids are predicated. This leads to actual increases in energy consumption,
triggered by the fact that the smart meter, as a complex data processing device,
consumes more energy than the traditional dumb meter.
97

98

These energy-efficiency shortcomings lead Dedeurwaerdere to assert that there
is an important need to revise the broadly consensual role of scientific research
in support of sustainable development. The latter is often, if not always,
focused only on resource substitution by technology, increases in energy
productivity, and emissions of wastes and pollution reductions all of which are
akin to energy-efficiency, and therefore unable to bring about meaningful
environmental protection.
99

5

Conclusions: redefining the grid’s smartness

The question this conclusion begs is whether smart grids’ environmental
dimension, and in particular sustainable development, can really be
instrumental in devising a smarter grid that adequately addresses the risks to
the rights to privacy and data protection.
On the one hand, sustainable development is a holistic notion that urges for
reconciliation between the goals of environmental and human rights protection.
On the other hand, such reconciliation can be achieved through a critique of
energy efficiency, which sustainable development renders possible through
sustainability science. It shows that energy efficiency will lead to weak
sustainability, and hence to very mixed results at best.
The preceding analysis of energy efficiency and its shortcomings casts a new
light on smart grids and their purported smartness. From this vantage point
they are a perfect embodiment of scientific innovation seeking to offset
resources depletion through increased technological performance. In this
particular case, it can be argued that the meters’ and grids’ personal data needs
(ie their “smartness”) are the necessary backbone of their energy efficiency
function. Calls for increased data granularity should therefore come as no
96

Sanjay Goel et al, Smart Grid Security (Springer, 2015) 42; Kloza, Van Dijk and De
Hert, above n 1, 16.

97

Dedeurwaerdere, above n 84, 21.

98

Cuijpers and Koops, above n 17, 31.

99

Dedeurwaerdere, above n 84, 22.

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Journal of Law, Information and Science

Vol 24(1) 2016

surprise (see above, section 3.1). However, energy efficiency’s shortcomings
lead us to argue that current smart grid technology will achieve neither
environmental protection nor privacy protection.
This critical observation allows us to challenge the energy efficiency paradigm,
which is the fundamental and unquestioned rationale justifying the processing
of large amounts of personal data at the heart of the smart grid technology. It
also opens the door to alternatives in the spirit of art 8 of the ECHR, which go
beyond energy efficiency. Something privacy-based alternatives (even privacy
by design) have been unable to render possible and thinkable. Instead of
focusing on how to limit the amount of data processed, how to limit access to
such data, how to aggregate it, and so on, this approach offers a very sound
rationale for arguing against the need for data processing at all.
So, what alternatives does sustainable development offer? The point is not to go
back to the dumb meter, which certainly does not better contribute to
environmental protection. On the contrary, through sustainability science and
its distinction between strong and weak sustainability, sustainable
development allows for a redefinition of the grid’s smartness along the lines of
its own criteria of strong and adequate environmental protection. Hence, one
could argue that the grid’s smartness would reside in the implementation of a
strong approach to sustainability.
Exactly what such redefined smartness would look like falls beyond the scope
of the present contribution. Nonetheless, it would have to take the properties
of strong sustainability into account. As a consequence, any approach that
genuinely strives to deliver absolute reductions in the use of natural resources
would have to take into account the dynamic nature of strong sustainability.
This includes the difficulty of measuring thresholds beyond which irreversible
degradation of natural capital occurs. It also includes the fact that sustainable
development has a strong ethical component that requires broad participation,
particularly of concerned parties. This also means that strong sustainability
embodies a stance that is opposed to purely technological, “silver bullet”
solutions, which can be applied in a standardised and linear manner across the
board. In this sense, a strong approach to sustainability entails greater levels of
complexity. However, and paradoxically, it represents the best chance to
achieve real and meaningful results in data/privacy protection and
environmental protection.
100

100

For some theoretical proposals as to what it might look like, see Nick Srnicek and
Alex Williams, ‘#Accelerate: Manifesto for an Accelerationist Politics’ in Ray Mackay
and Armen Avanessian (eds), #ACCELERATE# the accelerationist reader (Merve
Verlag, Urbanomic, 2014) 347; Ray Brassier, ‘Accélérer La Raison’ in Laurent de
Sutter (ed), Accélération! (Presses Universitaires de France - puf, 2016) 157; Yves
Citton, ‘Accélérer L’écologie’ in Laurent de Sutter (ed), Accélération! (Presses
Universitaires de France - puf, 2016) 205.

EAP 22

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