European Union: European Parliament Committee On Industry, Research And Energy Publish Opinion On The Proposed General Data Protection Regulation

Following the lead of the Committee on Civil Liberties, Justice and Home Affairs (LIBE), which already released its draft report ( see our prior blog), 20 February, the European Parliament Committee on Industry, Research and Energy (ITRE Committee) published its Draft Opinion on the proposed General Data Protection Regulation (the "Regulation"). This opinion has been submitted to LIBE, which has the task of consolidating amendments and voting on its own report at the end of April.

In the Draft Opinion, rapporteur Seán Kelly outlined his substantial support for the European Commission ("the Commission") proposal suggesting that the changes should help avoid excessive administrative burdens for enterprises, and introduce a greater degree of flexibility, especially in terms of accountability and the notification requirements to supervisory bodies. The ITRE Committee, however, proposed significant amendments to the Regulation in an attempt to ease restrictions on companies by focusing on corporate governance, the use of impact assessments, and bringing increased clarity to the provisions. It has recommended significant alterations to the most contentious provisions, such as consent mechanisms; the rights of access, portability, and to be forgotten; the 24-hour breach notification requirement; and the sanctions regime.

Stressing the potential for over-reliance on consent, the ITRE Committee felt the overuse of consent may be unhelpful or even damaging to privacy protection, and would prefer that consent not be seen as the "primary or most desirable means of legitimising the processing of personal data." Instead, the ITRE Committee would prefer that use of consent be limited to where necessary in the correct context, for instance, when "only when data subjects can meaningfully and easily provide and revoke it." Furthermore, the ITRE Committee also suggested that the consent should be proportionate given the type of personal data being processed and the purpose as determined "through an appropriate impact assessment." Where no impact assessment is conducted, the ITRE Committee envisages that a default requirement of explicit, informed consent would continue to apply. This recommendation could result in implied consent being available as method of processing data, such as when an individual seeks the services of an organisation where no contract is entered. The ITRE Committee also proposed that broad consent with an option to withdraw it at any point should be offered in case of historical, statistical or scientific research purposes. This, however, could set a dangerous precedent for scientific research, which often relies on de-identified data and can be crucial to development of new products, especially were the research stemmed from secondary uses of data. The ITRE Committee's proposal on consent has been highly criticised by the international advocacy group European Digital Rights (EDRi), which pointed out that creating different categories of consent could confuse users as well as controllers, leading to legal uncertainty.

Addressing the scope of anonymisation, the ITRE Committee goes one step further than Rapporteur Jan Philip Albrecht in LIBE's report by proposing stand-alone definitions of anonymous and pseudonymous data. This aims to achieve greater legal certainty and to encourage the utilisation of these methods in protecting personal data. Under the proposed definitions, anonymous data would mean "any information that has never been related to a data subject or have been (...) processed so that it cannot be attributed to a data subject." Pseudonymous data would mean "any personal data that has been (...) processed so that it of itself cannot be attributed to a data subject without the use of additional data which is subject to separate and distinct technical and organisational controls to ensure such non attribution." In relation to statistical and public health data, the ITRE Committee recommends including a provision that such data be made anonymous immediately after the collection, checking or matching. This would apply unless the identification data remains necessary for statistical and public health purposes, such as epidemiological, translational and clinical research.

Regarding the contentious right to be forgotten, the ITRE Committee takes the view that given the nature of the Internet, which enables data to be freely and easily disseminated, it is unrealistic to expect data controllers to be able to locate and erase personal data which has been made public. The UK Information Commissioner ("ICO") in its article-by-article analysis (see our blog on the topic) of the proposed Regulation likewise warned that it can be impossible to remove information from the Internet, and that the right to be forgotten could in fact "mislead individuals as to the degree of protection the law can offer them in practise." Consequently, the ITRE Committee suggested preserving the general right to be forgotten, but removing the excessively onerous clause detailing obligations on the controller to take all reasonable steps to erase personal data that has been made public.

In an effort to further reduce the burden on data controllers, the ITRE Committee advised that the duty to comply with data subjects' requests for erasure and the right to data portability of their individual personal data, should be limited "to the extent technically or practically feasible for the controller." EDRi criticised these proposed amendments, and suggested that if controllers cannot delete the data, they should be inspected by their competent data protection authority rather than be offered an exemption.

Significant concerns have been raised by data controllers over the right to data portability undermining businesses' legitimate interests to protect intellectual property rights and trade secrets. The ITRE Committee also considered the threat that the measure may enable identity theft if proper safeguards are not built in. This has led the ITRE Committee to limit the scope of the relevant article by providing that the right to data portability "shall not adversely affect the rights and freedoms of others, including trade secrets or intellectual property rights." Again, EDRi criticised the proposed change, arguing that the right to portability is "a slight extension of the right to access," and would pose no real threat to trade secrets of any platform providers.

The ITRE Committee was also concerned with the proper electronic format of the transmission of personal data, which under current wording of the proposed Regulation would be set by the Commission. There were some suggestions that this should be established by reference to a harmonised industry standard instead with responsibility to determine the format given to organisations.

In reviewing the highly criticised notification period for a personal data breach, the ITRE Committee echoed the sentiment of the ICO, by indicating that a fixed 24-hour timescale for reporting the breach to the appropriate national supervisory body is unrealistic. Instead, it is suggested that the data controller notify the personal data breach without undue delay, and only when the consequences of the breach have a potential to "seriously threaten the rights or legitimate interests" of the data subject. This reflects the ITRE Committee's preference of a risk-based approach to the issue. Additionally, the ITRE Committee believes that the proposed requirement of authorisation prior to the processing of personal data, which would be new to many data protection authorities, including the ICO, could result in a misallocation of resources and create a significant burden, and consequently recommended that the provision be removed. Similarly, the ITRE Committee advocates a risk-based approach to prior consultation, suggesting that this requirement should apply only when the data controller plans to process "special categories of personal data" which have a higher sensitivity. EDRi also criticised both proposals and advocates adopting a comprehensive notification obligation coupled with a fixed deadline, on the basis that it would allegedly place more pressure on the controller to prevent any data breaches.

The proposed reforms will bring about a significant increase in the sanctions for breach of data protection laws. The ITRE Committee believe that these should be easily referenced in a single provision which would allow the supervisory authority discretion, rather than a bright line requirement to issue a fine, to impose a sliding scale of enforcement actions, from the issuance of a warning without imposing a sanction, and for repeated, deliberate breaches, a fine of €1 million or up to 1% of its annual worldwide turnover for companies. The ITRE Committee feel that the sensitivity of the data should also be considered when assessing the amount of the fine.

The ITRE Committee showed support for the idea that special treatment should be given to small and medium-sized enterprises (SMEs). It voted to expand the approach in the current draft of the Regulation, which provides for a number of exemptions for SMEs.

In relation to the powers of the Commission to adopt delegated acts, the ITRE Committee opined that delegated acts will be overly prescriptive and may not be necessary in the majority of provisions where they are currently proposed.

The ITRE Committee's Draft Opinion has also been criticised on the basis that it was in some cases a wholesale cut and paste of various lobbying provisions, so it will be interesting to see how the Committee on Civil Liberties, Justice and Home Affairs responds since it has prime responsibility for getting the Regulation through the European Parliament. Let's hope the ITRE Committee's Draft Opinion has a positive impact with the Regulation being less prescriptive and less burdensome on organisations, while still harmonising provisions and preserving individuals' rights.

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 Mondaq.com.

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

Authors
 
In association with
Related Video
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.