European Data Protection Digest

Directive Reform Likely Delayed

September 29, 2011

 

By Jedidiah Bracy, CIPP

The European Commission’s publication of the EU Data Protection Directive (95/46/EC) reform will likely be delayed beyond the expected November deadline.

Matthew Newman, a spokesperson for European Commission Vice President Viviane Reding, told the IAPP Europe Data Protection Digest that “this is a comprehensive reform” and the timing for publication is “within 20 weeks.” 

The likely delay “does not entirely come as a surprise,” says Henriette Tielemans, partner at Covington & Burling LLP in Brussels. “For all the criticism it has received, the 1995 Data Protection Directive proves difficult to revise.”

The directive has been a landmark for privacy protection and guidance for more than 15 years. Since its enactment, the digital economy has expanded rapidly, prompting regulators to draft an updated data protection framework.

In a speech in May, Reding boiled down the reform to “four important changes,” including making the directive enforceable for countries outside the EU that “target” EU citizens; including “data protection by design;” revising the rules on adequacy as well as streamlining and strengthening “procedures for international data transfers,” and the creation of a “mechanism” for third-country providers--possibly an “EU Safe Harbour system.”

Reding added that “a sound data protection framework fosters trust.” Likewise, businesses “should do their share to ensure safe and transparent digital products and services.”

Trust is a component underlined by Netherlands Data Protection Commissioner and Chairman of the Article 29 Working Party Jacob Kohnstamm. Speaking at the International Data Protection Conference in Warsaw, Poland, last week, Kohnstamm said that by embedding privacy from the beginning, conducting privacy impact assessments and being accountable, companies will gain trust from consumers.

According to a document on the conference website, Kohnstamm said that “what counts for DPAs is that companies have done their data protection homework. Personal data should be properly protected, without DPAs spelling out each and every step controllers should take to ensure this.”

A spokesperson for Kohnstamm told the IAPP Europe Data Protection Digest that “the focus for a DPA should be on enforcement and not on guidance.”

Despite the many variables involved in reforming the directive, stakeholders seem to agree on certain desired outcomes.

“Increasing harmonisation in the EU’s internal market, strengthening the users’ rights and adapting the legislation to new technologies in a technology-neutral manner are major objectives shared by DIGITALEUROPE,” according to Christoph Luykx of Intel, who is chair of DIGITALEUROPE’s privacy group. “However, these discussions pose several legal and political questions which are complex in nature, and hence, quality is more important than time pressure.”