“Opening Clauses” and the GDPR – It Might Not Be As Easy As We Thought

by Seyfarth Shaw LLP
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The General Data Protection Regulation is coming, and along with it, a significant expectation of increased harmonization in the privacy rules across the EU. Considering the 60-plus articles which directly impose obligations on controllers and processors, this isn’t an unreasonable sentiment. However (as is often the case with the EU), reality is a bit more complicated than what the expectations reflect.

The reason for the retained level of complexity even under the GDPR are what are known as “opening clauses”. These clauses permit a Member State to modify the provisions of the Article in which the clause resides. In effect, the opening clauses permit the Member State to introduce a more restrictive application of the GDPR obligation via local legislation.

These opening clauses are particularly important to note as there are a number of them (around 30% of the directly applicable Articles have opening clauses), and many of them address an already complicated area of data protection law – employment. While there are a number of companies who have a large consumer impact in the EU, there are just as many (if not more) who have workers in the EU, or have clients who have workers in the EU. As a consequence, the implementation of the GDPR doesn’t fully mitigate the patchwork quilt of local law when it comes to labor & employment law. This is both because of the opening clauses in a number of related Articles, as well as the plain text of Article 88.

The lack of consistency in HR-related data protection is particularly concerning with the advances in workforce management, monitoring, and the use of personal devices in the workplace (e.g. Bring Your Own Device, or “BYOD” environments). One of the ways that the regulators have attempted to address this very real issue around inconsistent GDPR obligations is with an update to the 2001 Article 29 Working Party opinion on data protection of employees. The new opinion, published on 23 June 2017, provides an update to the recommendations which were put in place prior to the age of social media and pervasive computing (i.e. Internet of Things).

While not mandatory, the Opinion does operate somewhat as a roadmap to the way regulators in the EU will consider enforcement – both in breach situations, as well as in accountability situations (i.e. when an entity has to “show” how they are compliant). The Opinion is also instructive as much of the analysis revolves around the concept of “proportionality”.

This balancing of the legitimate interests between employees and employers was not a commonly used method of legitimizing processing under Directive 95/46/EC and its local implementing legislation. However, it seems that this is the direction the Working Party is taking.  This may be seen as both a good and bad situation. On one hand, it indicates that the regulators are starting to understand the complexity of the modern workplace, and how rigid bright-line rules won’t really work. On the other hand, it would seem to require a significant amount of analysis by data protection experts (which is subsequently documented) showing the balance of interests doesn’t harm the employee.

In any event, at least in the realm of employment law, the GDPR isn’t going to be quite the panacea that many of us were hoping for. It is still going to be a complex, difficult to manage, area of law for the foreseeable future.

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.

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