The EU’s Data Protection Regulation: where are we?

The replacement of Directive 95/26/EC – the bedrock of data protection in Europe – with a new Regulation is intended as a radical overhaul, making protections for personal data fit for the digital world. It has now been over two years since the first substantive draft of that Regulation was made public. I dimly recall Tim Pitt-Payne and I summarising it – see here.

The Regulation is yet to emerge. As a number of Panopticon readers have asked: where have we got to? Here are five points by way of summary.

1. Two members of the trinity are on board

Following seemingly interminable negotiations, the European Parliament’s civil liberties committee (LIBE) now endorses the European Commission’s position on the modified draft. This means that two of the three key bodies at the EU level appear to be of one mind. The next step is for the third body, the European Council, to be persuaded during negotiations. See this blog post by the ICO’s Deputy Commissioner, David Smith.

2. In search of the cardinal virtues – consent, consistency, proportionality

In a very illuminating summary of the major principles at issue, the ICO tells us that it welcomes the following features of the current draft: a stringent approach to consent (or, in low-risk situations, a ‘legitimate interests’ condition justifying the processing of personal data); consistency and an EU-wide ‘one-stop shop’ model; ensuring that processing conditions are proportionate to risk (by, for example, requiring data subjects to be notified ‘without delay’ rather than within 24 hours, as was originally proposed).

The ICO remains concerned, however, that the draft Regulation continues to suffer from some vices: its use of the ‘pseudonymisation’ concept muddies the distinction between personal and non-personal data; the approach to profiling is insufficiently nuanced, and the international transfer rules may be unrealistically stringent.

3. The Regulation is dead!

Peter Fleischer, Google’s global privacy counsel, considers that the stalled progress of 2013 effectively means that “the old draft is dead”. His view, however, is that this delay will provide an opportunity for a more realistic re-think: “Whatever comes next will be the most important privacy legislation in the world, setting the global standards. I’m hopeful that this pause will give lawmakers time to write a better, more modern and more balanced law.”

4. Long live the Regulation!

EU officials are, however, optimistic about the current draft being spurred on to finality in 2014. Peter Hustinx, the outgoing European Data Protection Supervisor (curiously, no successor has yet been appointed), hopes that Greece’s imminent turn in the presidency seat will provide a fresh impetus for productive negotiation. Importantly, he sees Germany (often characterised as setting very stringent standards for data protection) as being in the driving seat: “The new German government can tackle this subject with the necessary drive and energy and thereby gain acceptance of the German position at European level and lead Europe to a higher level of data protection.”

5. Are the Americans Safe?

The processing of EU citizens’ data by US-based companies sits outside the direct reach of the envisaged Regulation, as with the current Directive. Since 2000, transfers of personal data to the US have been governed by the Safe Harbour Agreement, under which approximately 3,300 companies have been certified as safe (in the sense of being EU compliant in their data protection standards).

The European Council and Parliament have, however, expressed concern about the fitness for purpose of the Safe Harbour scheme. They have observed that “Web companies such as Google, Facebook, Microsoft, Apple, Yahoo have hundreds of millions of clients in Europe and transfer personal data for processing to the US on a scale inconceivable in the year 2000 when the Safe Harbour was created”. They area also concerned about the ongoing revelations about surveillance: “divergent responses of data protection authorities to the surveillance revelations demonstrate the real risk of the fragmentation of the Safe Harbour scheme and raise questions as to the extent to which it is enforced”.

Progress by the US Department of Commerce is now sought – by March 2014 – on improving transparency, the application of EU principles and enforcement. The arrangements will be further reviewed in 2014.

Robin Hopkins @hopkinsrobin