UK: Data Protection: Commission Reports No Level Playing Field

Last Updated: 21 May 2003

On 15 May 2003 the European Commission published its first report on the implementation of the Data Protection Directive (95/46/EC) (the "Directive"). The report is based on a review of Member States’ legislation and wide consultation, including an online survey which generated over 10,000 responses.

The essential questions to be addressed by the report were whether the ways in which the Member States have transformed the Directive into national law achieve the ambitions of the Directive and, if not, what should be done to correct this, for example, should the Directive itself be amended? (Click here for a copy of the report).

Conclusions

The Commission expressed itself generally satisfied with the implementation of the Directive and there are no current plans to amend it. However, the Commission recognised that, so far as ensuring a level playing field for operators in different Member States and simplifying the regulatory environment, the differences between Member States’ laws and the Directive are still too great. Amendments to national legislation are likely to be required in due course (this will be the subject of future reviews). The Commission has proposed a programme of work to address divergences in implementation and raise awareness (see below).

Specific Areas of Difficulty Identified by the Review

These included the following key findings:

Sensitive and non-sensitive personal data - greater clarity on the "legitimate interests" condition1 was sought; this allows processing of non-sensitive personal data by data controllers without the subject's consent, provided that the legitimate interests, rights and freedoms of the individual are not overridden. The Commission’s view is that the absence of adequate safeguards means appropriate levels of protection for individuals are not being achieved.

Applicable Data Protection Law – this came in for heavy criticism by respondents as, currently, organisations with a presence in (or which merely "use equipment" to process personal data in) more than one Member State may have to comply with multiple national laws. Submissions received argued for a "country of origin rule", allowing multinationals to operate via one set of rules throughout the EU. The Commission agreed that this area, and the term "use of equipment" in particular, needed clarification.

Legitimate Processing Conditions – these have been implemented unsatisfactorily in a number of jurisdictions, raising issues concerning appropriate safeguards and grounds for legitimate processing. In particular, the distinction between "unambiguous consent" (one of the conditions for lawful processing of non-sensitive personal data) and "explicit consent" (which is the level of consent required to process sensitive personal data) needs to be clarified to ensure uniformity across Member States.

Provision of Information to Data Subjects – in some jurisdictions the law (incorrectly) requires that certain "fair processing" information2 always has to be provided to the data subject, regardless of whether the individual already has that information or not. This causes significant difficulties for multinational companies operating at pan-European level, especially via the Internet.

Notification Requirements – many submissions argued for a need to simplify the notification process3. The Commission felt that problems here were largely due to Member States’ failures to carry through the exemptions available in the Directive.

Data Exports Outside the EEA – Member States have diverged greatly on this business-critical issue. The Directive mandates that (unless exempt) personal data may only be transferred to countries which ensure an adequate level of data protection (click here for our 21 December 2001 Newsflash on data exports). At present, some Member States require almost no referral to the national supervisory authority, whereas others require everything to be referred for authorisation, even where exemptions apply. The effect of this is likely to be that data exports will "switch to the ‘least burdensome’ point of export".

Subject Access Requests4 - despite calls for more flexible interpretation by those consulted, the Commission was not convinced (surprisingly, in our view) that this aspect of the Directive was posing serious practical problems for controllers. The Commission relied on the 62% of data controllers whose responses to the online questionnaire indicated that responding to subject access requests did not constitute an important effort for their organisation. (However, as most of the respondents apparently had no figures available or had received fewer than 10 requests, it is possible that their responses reflect a lack of experience).

Future Plans

In response to concerns identified in its report, including on the levels of compliance, enforcement and awareness, the Commission intends to put in place a number of initiatives. A work programme for 2003-4 has been proposed which includes discussions between the Commission and Member States and Data Protection Authorities and also requests that the Article 29 Working Party5 makes proposals for a substantial simplification of notification requirements, more harmonised information requirements and simplifying the international data transfer regime. Promoting PETs (Privacy Enhancing Technologies), self-regulation and raising awareness of data privacy rights were also highlighted as aims.

What Changes Can Businesses Expect to See?

Over the short to medium term, the call for increased resources for national Data Protection Authorities and efforts to heighten the public’s awareness of data protection rights can be expected to raise the compliance stakes for data controllers throughout the European Union. The sooner organisations put in place compliance programmes, the better the position they will find themselves in once the anticipated tougher enforcement regime becomes a reality.

The outlook is not just pro-data subject however. At a detailed level there is recognition that the lack of consistency in data export restrictions, applicable law and notification obligations needs to be addressed. On data exports, the Commission expects to see progress in four key areas: (1) more "approved country" findings; (2) a wider choice of recognised standard clauses for data export contracts; (3) the role of binding intra-corporate rules e.g. group-wide data protection policies; and (4) more uniform interpretation of the exemptions. This will be heartily welcomed by business and can only promote smooth international data flows, with all the enhancements in information exploitation and efficiencies these entail.

1 See Schedule 2, condition 6(1) of the UK’s Data Protection Act 1998.

2 This includes ensuring the data subject knows who the data controller is and the purposes for which his personal data are being processed.

3 The duty for data controllers to notify or register their processing activities in advance with the national data protection authority; in the UK, this is the Information Commissioner.

4 The exercise by an individual of his right to see information held about him by a data controller.

5 This Working Party has an independent, advisory role and includes representatives from the Member States’ data protection authorities.

Article by Kate Brimsted

© Herbert Smith 2003.

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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

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

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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