EU Data Protection
What Next for the EU Regulation?
After nearly two years of deliberations, the European Parliament has come out of the legislative closet with its proposed view for a new EU data privacy framework. In many respects, the parliament has surprised many of its critics by delivering a draft proposal which is more measured than the European Commission's original text. On the whole, however, the parliament's draft represents a powerful statement in favour of people's ability to control their own data.
This is obviously not surprising. In relation to privacy matters, the parliament has traditionally become a fierce advocate for the rights of citizens. This is often counterbalanced by the Council of the EU, with whom the parliament shares the European Union's legislative power. Together, the two EU institutions provide the necessary stability to ensure that laws are sensible and effective. So whilst the parliament is typically more idealistic in its outlook, the council tends to inject a dose of realism which is more aligned with the economic and political priorities of the EU member states.
These complementary roles are also being played out in the context of the forthcoming regulation. Through the draft text approved by parliament on 21 October 2013, the parliament is clearly trying to ensure as a number one priority that the emerging legal regime safeguards what is regarded as a fundamental human right: the protection of personal data. As a result, the parliament's proposal emphasises the rights of individuals and strengthens the obligations affecting the use of personal data.
The parliament has carefully refined the data protection rights of individuals. In some instances, the parliament's draft has softened the commission's approach, such in the case of the right to erasure or the right to object to profiling. In other cases, such as in relation to the right to object to the processing altogether, the parliament's palpable aim is to put individuals in a position of power in terms of the uses made of their data.
However, it is perhaps in relation to the specific legal requirements and restrictions affecting the controllers' ability to use, share and exploit personal data where the parliament has sought to make its mark.
The parliament is reinforcing the so-called accountability principle by requiring the adoption and regular review (every two years) of compliance policies and procedures that persistently respect the choices made by data subjects. It is also bolstering new principles like data protection by design and by default, establishing brand new obligations such as the requirement to carry out risk assessments of most processing operations and ongoing data protection compliance reviews, as well as requiring the compulsory appointment of data protection officers. In practice, all of these measures are set to have a very direct impact on the cost of compliance.
In addition and mistakenly, in my view, the parliament has sought to use the regulation as a political tool to show its interest in safeguarding the privacy of EU citizens against the interference of non-EU governments.
The parliament acknowledges that this is a direct consequence of the revelations about the NSA activities, which are of course an uncomfortable reminder of the uneasy balance between public safety and individual freedoms. Getting that balance right is in fact one of the greatest political challenges of our time. One which must be urgently addressed, but it cannot be right to try and eradicate unjustified government access to personal data by simply banning global data disclosures and putting organisations between a rock and a hard place.
Here is where the Council of the EU is likely to play a crucial role going forward. More sensitive to the reality of global politics and to the financial repercussions of heavy-handed regulation, the council is bound to tone down the parliament's approach. One easy win would be to grade the scope of the controllers' obligations in accordance with the potential risk factor of the processing involved. In addition, the council may be more receptive to the many voices out there—including mine—pointing out that data globalisation is not a threat, but a reality.
The council's views will be revealed in early December, when the Justice Ministers meet to finalise their position. Judging by the statements of the Irish and Lithuanian presidencies of the council during the course of this year, we are unlikely to see a drastic departure from the principles and rights that have been debated so far. The most probable scenario is that the council will stick to the structure of the draft regulation envisaged by the commission, seek to simplify some of the rules and aim to make compliance with the new framework a bit less costly for organisations.
In practice, this means that despite the impending deadline of next spring's parliamentary elections, there is still time to reach a realistic compromise that takes into account the views of all stakeholders and institutions. The European Commission—although not a legislative body as such—will play a key part by bridging any existing gaps. On balance, I think—as I have always done—that a new Data Protection Regulation will be adopted by the European Parliament and the Council of the EU next year, and that whether we like it or not, European privacy law will continue to be strict, complex and ambitious.
About the Author
Eduardo Ustaran, CIPP/E, is a dually qualified English solicitor and Spanish abogado based in London and an internationally recognised expert in privacy and data protection law. He has been named by Revolution magazine as one of the 40 most influential people in the growth of the digital sector in the UK and is ranked as a leading individual for data protection by Chambers UK. Ustaran is also the author of The Future of Privacy, a book aimed at reshaping the global debate around data and privacy. Ustaran advises on the impact of EU data privacy law on the operational activities of all types of organisations and has assisted data protection regulators from different countries to align their positions and interpretation of the law. He is editor of Data Protection Law & Policy and a member of the panel of experts of DataGuidance. Ustaran is co-author of E-Privacy and Online Data Protection and of the Law Society’s Data Protection Handbook.