EU Data Protection Regulation: Do you move data across borders? New EU amendments aim to give more individual control over personal info

by DLA Piper
Contact

The EU Parliament’s Civil Liberties Committee (LIBE) has approved a compromise set of amendments to the EU Data Protection Regulation that moves the Parliament’s position to the left.

Two earlier proposals, from the European Commission and the EU Council of Ministers, were rejected by the Committee.

It is thought that fallout from the NSA scandal was a strong factor affecting the direction of these amendments.

We are pleased to provide some headline analysis of the vote, which took place on October 21, including a look at the impact of the amendments on businesses that move data across border, and the likely next steps.

VOTE: INFLUENCED BY THE NSA SCANDAL?

In response to increased EU and external lobbying activities which have taken place at the European Parliament level, many MEPs decided they would vote for the proposed compromise amendments that arose from the work of rapporteur Jan Albrecht, member of European Parliament (MEP), member of the Greens/European Free Alliance and lead Rapporteur on the Commission’s draft Proposal for a General Data Protection Regulation as well as for the EU-US data protection framework agreement.

Observers have commented that these compromise amendments are quite far from some of the original, more business friendly amendments which had been tabled in other EU legislative committees. One theory behind this outcome notes the influence of the NSA scandal on the positioning of certain MEPs, who perhaps felt it necessary for the sake of consumers and their electorate to take a firmer stance on data protection policy.

The vote saw a block approval of the majority of pre-tabled compromise amendments, and a majority position approving the remainder of compromise positions.

At the end of the vote, MEP Albrecht informed the European Parliament LIBE Committee that they would vote to enter into a trilogue negotiation with the Council (consisting of the 28 EU member states) to find a common position.  This will then form the final legal basis in Europe. It is worth noting that the rapporteur made this commitment to enter into a trilogue on the basis of a condition: whether or not the Council comes to a partial agreement, or no agreement at all, on a common position with the Parliament, the vote will proceed in the Plenary before the end of the current Parliamentary term in May 2014.

HIGHLIGHTS OF THE AMENDED REPORT AS APPROVED BY LIBE

Data transfers to non-EU countries
 
According to the adopted text, if a third country requests a company (such as a search engine, social network or cloud provider) to disclose personal information processed in the EU, then the company would first have to seek authorization from the national data protection authority before transferring any data. The company would also have to inform the person whose data is involved of such a request.

This proposal is a response to the mass governmental surveillance activities unveiled in the media in June 2013.
 
Sanctions
 
Companies breaking the rules would face fines of up to €100 million or up to 5 percent of the annual worldwide turnover, whichever is greater.  The European Commission had proposed penalties of up to €1 million or 2 percent of the global annual turnover.
 
Right to erasure
 
According to the Civil Liberties Committee, any person would have the right to have his or her personal data erased if he or she requests it. To strengthen this right, if a person asks a "data controller" (such as an Internet company) to erase his or her data, then the firm should also forward the request to others where the data are replicated. The "right to erasure" would cover the "right to be forgotten" as proposed by the Commission.
 
Explicit consent
 
Where processing is based on consent, an organisation or company could process personal information only after obtaining clear permission from the data subject, who could withdraw his or her consent at any time. A person's consent means any freely given, specific, informed and explicit indication of his/her wishes, either by a statement or by a clear affirmative action. There are in addition amendments to the basis of using legitimate interests of the data subject as a base for processing.
 
LIBE clarified that the execution of a contract or the provision of a service cannot be made conditional upon consent to processing personal data that is not strictly needed for the completion of that contract or service. Withdrawing consent must be as easy as giving it.
 
Profiling

 
MEPs set limits to profiling, a practice used to analyze or predict a person's performance at work, economic situation, location, health or behavior. Profiling would only be allowed subject to a person’s consent, when provided by law or when needed to pursue a contract. Furthermore, such a practice should not lead to discrimination or be based only on automated processing. Any person should have the right to object to any profiling measure, and certain data sets would be prohibited for use in a profiling situation, such as administrative sanctions and judgements and gender identifiers. This will impact those who use such identifiers for decision making and individual identification purposes - it will mean that bankruptcy or court judgements cannot be used in a profiling or scoring decision model.

In many profiling situations, there must be the possibility of manual intervention and a full explanation of how the decision making process has been determined - this has a drastic impact on credit and financial services decision making activities.

One-stop-shop – one designated regulator

The European Parliament gave its support to the Commission's proposal to have a "one-stop-shop" for companies that operate in several EU countries and for consumers who want to complain against a company established in a country other than their own. This will mean that companies have one designated regulator in Europe, based upon the country of establishment for the company's main activities.

NEXT STEPS

As previously mentioned, the committee vote also mandates the European Parliament to start negotiations with the Council. Inter-institutional talks will start as soon as the Council agrees on its own negotiating position for both proposals (directive and regulation). Parliament aims to reach an agreement on this major legislative reform before the May 2014 European elections. However, should a compromise position not be found, the European Parliament has committed to bind its position via the plenary vote - rather than allow a natural compromise to be formed, since this may take more time.

There will be limited time now to influence the final outcome - and as such strong, consistent and well substantiated messaging can only be encouraged.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper
Contact
more
less

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.