European Union: European Commission's Proposed Change To The EU Data Protection Laws: Detailed Analysis


In advance of formal publication, the European Commission sent the proposed Data Protection Framework for the EU for inter-service consultation with the Directorates-General, which consists of a Data Protection Regulation and a new Police and Criminal Justice Data Protection Directive. Following this period of consultation, the European Commission's final draft will be submitted to the European Parliament, with the timing estimated during the latter part of January 2012. These documents were first leaked to the press, and highlighted in our recent blog. Originals can be obtained at Statewatch.


The European Commission has sought to fulfil its long-stated ambitions of harmonising the data protection regime across Europe, and of enhancing individual's rights. While one of the stated objectives is also "cutting red tape for businesses", it is difficult to see how this objective has been met in the draft documents, given the increased burdens on industry. Another stated objective of the Commission was to give individuals more control over their data, to address issues related to children's use of the Internet. The Commission will seek to have European Parliamentary approval of the Framework by the end of 2012, which, if met, means a new Data Protection Framework may be in force sometime in 2013. 


If there was ever any doubt as to whether European data protection law applied outside the EU, then this draft regulation should remove it. Article 2 explicitly extends the scope of the regulation to any controller, established inside or outside of the EU, who processes personal data of EU citizens. Where an organisation is outside the EU, it must appoint an EU representative.

More surprising is that the Regulation will apply to individual persons who make the "personal data of other natural persons [sic] accessible to an indefinite number of individuals"; in other words, the regulation applies to individuals who post others' personal data on the Internet.

Obligations on processors would increase by having to provide assistance to a controller for data breaches or loss, and in relation to data at the end of the controller/processor relationship. In other respects, processors will have identical obligations imposed on them as controllers, specifically, for implementing appropriate security measures and being fully accountable to EU data protection regulators for their processing of personal data for which they would be directly liable.


While a number of definitions remain the same as in the existing Data Protection Directive 95/46/EC, additional definitions have been added, such as "personal data breach", which covers all types of security breaches, including when the data is in transit, being stored or otherwise processed. The consent of health data has been broadened as well as changed to "data concerning health", which extends to eligibility for health services, and includes separate definitions for "genetic data" and "biometric data". Most notable is the change in the definition of "consent", which includes a requirement for consent to be "explicit".

A new definition of "child" has been added, which is defined as anyone under the age of 18, and if it remains in its current form may conflict with some organisations' practices in allowing children over 13 access and membership to websites without first seeking parental consent, or when providing them with targeted marketing, since that will also require parental consent for children under 18.

Data Protection Principles 

The principles in the draft Regulation broadly correspond to the existing Data Protection Directive, although certain elements have been clarified or extended in relation to the transparency principle (processes fairly and in a transparent manner), the data minimisation principle (limited to the minimum data necessary and only processed if it's not possible to do so in a de-identified manner), and a new purpose of accountability, which places full responsibility and liability upon controllers for each processing operation.

The accountability principle is meant to encapsulate good data protection practice and borrows certain principles from other data protection regimes, such as Canada, Australia and other Asia Pacific countries. As a result of this new principle, the existing notification requirements to data protection authorities falls away and instead is substituted by internal controls that document processing operations. Rather than having to comply with myriad and different regulatory filing requirements, controllers will instead have to make available upon request to data protection authorities, evidence demonstrating their data protection policies and procedures addressing their processing activities, including time periods relating to retention and erasure, as well as 'privacy by design and default' mechanisms and privacy impact assessment.

Lawful Processing

Lawful processing remains based on (i) consent, (ii) necessity for performance of a contract, (iii) legal requirement, (iv) vital interests, (v) public interest and (vi) a controller's legitimate interests.

Legal requirements are now explicitly limited to requirements within the EU or of a EU Member State, and a controller's legitimate interests must override the fundamental rights of the individual, especially when the individual is a child. The absolute bar on processing data subject to a legal requirement outside the EU aligns with prior decisions of the Article 29 Working Party, but may make it much more difficult for multi-national companies to comply with legal requirements in other countries, such as the U.S. discovery rules, without resort to The Hague Evidence Convention. Where U.S. case law has required production of documents based on there not being a realistic prospect of prosecution, the new sanctions regime under the proposed Regulation may change that view if an organisation is suddenly exposed to sanctions of up to 5 percent of its worldwide annual turnover for transferring data to the United States for use in litigation.

Controllers will now have to prove that they have been provided with consent, and consent may not be relied upon if there is a "significant imbalance in the form of dependence between the position of the data subject and the controller", which would make it nigh on impossible, for example, for employers to obtain employees' consent. In addition, where a controller is processing sensitive personal data, there may be certain instances where consent cannot be validly obtained because either the law of the EU or of a Member State prohibits it.

Controllers would only be able to process personal data for commercial direct marketing purposes based on explicit consent, and opt-outs would only apply to marketing for non-commercial purposes "recognised as being in the public interest", presumably covering marketing for political or charitable causes.

Rights of the Individuals

In addition to the rights of access and rectification, the draft Regulation contains new rights, including the right to be forgotten and the right of portability and profiling.

The right to be forgotten is an extension of the previous right of objection and erasure. It is intended to provide individuals with an opportunity to redress youthful indiscretions broadcast for posterity on social media sites and wipe the virtual slate clean.

The right to portability would allow individuals to transfer all of their data from one electronic provider to another, for instance, where they wanted to move email accounts from one Internet-based provider to another.

In relation to an individual's right to object to processing, the burden would be switched from the individual to the organisation to demonstrate that it has compelling legitimate ground to continue processing the personal data.

rganisations would potentially be barred from profiling individuals based on automatic processing that seeks to predict a person's performance to work, creditworthiness, economic situation, location, health, personal preferences, reliability or behaviour; unless done so in the course of performing a contract, consent has been obtained or is expressly authorised under law.

Data Protection Officer

Aligned closely with the introduction of the Accountability Principle is the requirement for both controllers and processors to designate a data protection officer. This will be imposed on all public bodies and any private enterprise employing more than 250 people. The core duties of the data protection officer are set out in some detail, and the independent status of the role, with legal protection given to the post-holder, is established as a non-negotiable requirement. While this measure may represent a not insignificant cost to many controllers, it appears to be the price for a greater degree of self-regulation.

Data Breach Notification

As widely predicted, the regulation will introduce a general requirement on controllers (with the full support of their processors) to notify EU data protection authority of data breaches within 24 hours. Controllers may also have to notify individuals if the breach is likely to have adversely affected them unless the controller has demonstrated to the authority that it has implemented appropriate security measures.

Transfers to Third Countries

Transfers of data outside the European Union will still be permitted where adequate protection is established, including through the use of Binding Corporate Rules, standard data protection clauses or rulings of adequacy by the European Commission. The procedure for BCRs is to be simplified and will be automatically accepted across all EU Member States upon authorisation. Derogations to the transfer bar have been changed, with the most notable being that transfers may be made for the legitimate interest of the controller or process so long as they are not frequent, massive, or structured, and adequate safeguards are in place.

European Data Protection Board

A new supervisory body, the European Data Protection Board, will supersede the existing Article 29 Working Party and ensure consistency of approach, enforcement in relation to all aspects of the Data Protection Framework, including authorisation of BCRs, and the enforcement mechanisms.

Court Actions

At one point, the European Commission was exploring the possibility of allowing individuals to bring class actions. The draft Regulation does not include such a provision, but it does permit organisations aiming to protect individual's rights to seek judicial remedies against controllers, processors or a data protection authority.

Sanctions - the real cost of getting it wrong 

Easily the most headline-grabbing aspect of the draft Regulation is the new sanctions regime, which sets out a harmonised and consistent approach to penalising controllers, their representatives and/or processors for infringements. Based on the principle that penalties "must be effective, proportionate and dissuasive", the draft Regulation provides three tiers of sanctions for intentional or negligent breaches of between 1 percent, 3 percent or 5 percent of an enterprise of annual worldwide turnover. Breaches at the highest level of 5 percent include:

  • Processing personal data, and in particular sensitive personal data, without a legal basis or otherwise in breach of the relevant restrictions
  • Not designating a representative
  • Failing to notify regulators and, if relevant, data subjects of personal data breach
  • Not designating a data protection officer when required to do so

The following factors will be taken into account in fixing the appropriate penalty: the nature, gravity and duration of the breach; the degree of responsibility of the controller or processor and their previous compliance record; the technical and organisational measures and procedures they have implemented; and the degree of cooperation with the regulator shown and steps taken to remedy the breach.


While this is only a draft of the new Data Protection Framework, and it is unlikely to be either submitted or enacted by the European Parliament in its current form, the draft Framework does contain quite a few provisions that will most likely be enacted. What remains to be seen is whether the sanctions, which will elevate the penalties for non-compliance to a level similar to anti-trust, will remain.

With so many substantive changes, it is also hard to know whether the changes will have a knock-on effect on the presently lawful bases for transfers of personal data outside the EU, such as that the existing EU Standard Contractual Clauses, the U.S. Safe Harbor Framework, to the list countries approved as by the Commission as providing adequate protection, or even whether organisations with BCRs will have to amend them and seek re-authorisation.

The European Commission's stated goal is to have Parliamentary approval by the end of 2012. Despite the changes that may come as a result of the legislative process, the draft Regulation provides enough detail in relation to the principle of accountability and the increased self-regulatory regime for organisations to start preparing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.