The European Commission plans to unify data protection within the European Union with
a single law, the General Data Protection Regulation.
The current EU Data Protection Directive 95EC does not consider important aspects like globalization
and technological developments like social networks and cloud computing sufficiently
and determined that new guidelines for data protection and privacy were required.
Therefore a proposal for a regulation was released on 25 January 2012.
Subsequently numerous amendments have been proposed in the European Parliament and the
Council of Ministers.
The EU's European Council aims for adoption in late 2014 and the regulation is planned
to take effect after a transition period of two years.
Summary "The proposed new EU data protection regime
extends the scope of the EU data protection law to all foreign companies processing data
of EU residents.
It provides for a harmonization of the data protection regulations throughout the EU,
thereby making it easier for non-European companies to comply with these regulations;
however, this comes at the cost of a strict data protection compliance regime with severe
penalties of up to 2% of worldwide turnover."
Note: The current version contains increased fines up to 5%.
Content The proposal for the European Data Protection
Regulation contains the following key changes: Scope
The regulation applies if the data controller or processor or the data subject is based
in the EU.
Furthermore the Regulation also applies to organizations based outside the European Union
if they process personal data of EU residents.
According to the European Commission "personal data is any information relating to an individual,
whether it relates to his or her private, professional or public life.
It can be anything from a name, a photo, an email address, bank details, posts on social
networking websites, medical information, or a computer’s IP address."
Single set of rules A single set of rules applies to all EU member
states and there will be one Single Data Protection Authority responsible for each company depending
on where the Company is based or which DPA it chooses.
A European Data Protection Board will coordinate the DPA's.
There is an exception for employee data that still might be subject to individual country
regulations.
Responsibility & accountability The notice requirements remain and are expanded.
They must include the retention time for personal data and contact information for data controller
and data protection officer has to be provided.
Privacy by Design and by Default require that data protection is designed into the development
of business processes for products and services.
Privacy settings are set at a high level by default.
Data Protection Impact Assessments have to be conducted when specific risks occur to
the rights and freedoms of data subjects.
Risk assessment and mitigation is required and a prior approval of the DPA for high risks.
Data Protection Officers are to ensure compliance within organizations.
They have to be appointed for all public authorities and for companies processing more than 5000
data subjects within 12 months.
Consent Valid consent must be explicit for data collected
and purposes data used.
Consent for children under 13 must be given by child’s parent or custodian, and should
be verifiable.
Data controllers must be able to prove "consent" and consent may be withdrawn.
Data breaches The data controller has to notify the DPA
without undue delay and, where feasible, not later than 72 hours after having become aware
of the data breach.
Individuals have to be notified if adverse impact is determined.
Sanctions The following sanctions can be imposed:
a warning in writing in cases of first and non-intentional non-compliance
regular periodic data protection audits a fine up to 100 000 000 EUR or up to 5% of
the annual worldwide turnover in case of an enterprise, whichever is greater
Right to erasure A so-called right to be forgotten was replaced
by a more limited right to erasure in the version of the GDPR adopted by the European
Parliament in March 2014.
Article 17 provides that the data subject has the right to request erasure of personal
data related to him on any one of a number of grounds including non-compliance with article
6.1 that includes a case where the legitimate interests of the controller is overridden
by the interests or fundamental rights and freedoms of the data subject which require
protection of personal data.
Data portability A user shall be able to request a copy of
personal data being processed in a format usable by this person and be able to transmit
it electronically to another processing system.
Timeline The preliminary schedule is
21 October 2013: European Parliament Committee on Civil Liberties, Justice and Home Affairs
had its orientation vote.
Ongoing negotiations between European Parliament, Council and Commission
Expected adoption in 2015 Expected enforcement from 2017
Discussion & challenges The proposal for the new regulation is not
final yet and discussions are controversial.
Thousands of amendments have been proposed.
The single set of rules and the removal of administrative requirements are supposed to
save money.
But critics point out some issues The requirement to have a Data Protection
Officer is new for many EU countries and criticized by some for its administrative burden.
The GDPR was developed with a focus on social networks and cloud providers, but did not
consider requirements for handling employee data sufficiently.
Data Portability is not seen as a key aspect for data protection, but more a functional
requirement for social networks and cloud providers.
Language and staffing challenges for the Data Protection Authorities:
Non-European companies might prefer the UK/Irish DPA because of the English language.
This will require extensive resources in those countries.
EU citizens no longer have a single DPA to contact for their concerns, but have to deal
with the DPA the company chose.
Communication problems due to foreign languages have to be expected.
The new regulation conflicts with other non-European laws and regulations and practices.
Companies in such countries should not be acceptable for processing EU personal data
anymore.
The biggest challenge might be the implementation of the GDPR in practice:
The European Commission and DPAs have to provide sufficient resources and power to enforce
the implementation and a unique level of data protection has to be agreed upon by all European
DPAs since a different interpretation of the regulation might still lead to different levels
of privacy.
The implementation of the EU GDPR will require comprehensive changes of business practices
for companies that did not implement a comparable level of privacy until now.
There is already a lack of privacy experts and knowledge as of today and new requirements
might worsen the situation.
Therefore education in data protection and privacy will be a critical factor for the
success of the GDPR.
References ^ "New draft European data protection regime".
m law group.
Retrieved 3 January 2013.
^ "Inofficial consolidated version GDPR".
Rapporteur Jan Philipp Albrecht.
Retrieved 9 December 2013.
^ Proposal for the EU General Data Protection Regulation.
European Commission.
25 January 2012.
Retrieved 3 January 2013.
^ "Inofficial consolidated version GDPR".
Rapporteur Jan Philipp Albrecht.
Retrieved 9 December 2013.
^ European Commission’s press release announcing the proposed comprehensive reform of data
protection rules.
25 January 2012.
Retrieved 3 January 2013.
^ "How the Proposed EU Data Protection Regulation Is Creating a Ripple Effect Worldwide".
Judy Schmitt, Florian Stahl. 11 October 2012.
Retrieved 3 January 2013.
^ Baldry, Tony; Hyams, Oliver.
"The Right to Be Forgotten".
1 Essex Court.
^ "European Parliament legislative resolution of 12 March 2014 on the proposal for a regulation
of the European Parliament and of the Council on the protection of individuals with regard
to the processing of personal data and on the free movement of such data".
European Parliament.
^ Important facts regarding the GDPR.
Jan Philipp Albrecht.
Retrieved 23 July 2013 ^ Overview of amendments.
LobbyPlag.
Retrieved 23 July 2013.
External links EU Data Protection page
Procedure 2012COD, EUR-Lex 2012/0011(COD) - Personal data protection:
processing and free movement of data, European Parliament
How to prepare for proposed EU data protection regulation
Overview of proposed amendments by LobbyPlag