Friday, 6 October 2017

GDPR - processor to "immediately inform" - indentation matters!

The diagram below encapsulates a brief history of the legislative progress of GDPR Art.28(3)(h) and the final subparagraph of Art.28(3), and a processor's obligation to "immediately inform the controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions". Click on the image to enlarge it.

From a separate sub-paragraph, to same level indented, joined in the same paragraph, separated out again... but that can change the meaning!

For the links to these travaux preparatoires documents, and discussion of this and other controller/processor contract and liability issues in response to the UK ICO's recent consultation, please see my SCL article.






Monday, 19 September 2016

Privacy Shield – history, key links

This blog contains a chronology and key official links regarding the EU-US Privacy Shield, which replaced the EU-US Safe Harbor scheme, as a resource for ease of historical reference. As I’m UK-based, this inevitably has a UK slant, so any suggestions of further links would be welcome. (I aim to record official links only, not links to news stories, unless they provide useful information not available officially)

Snowden’s revelations of mass surveillance by US and other countries’ intelligence or security authorities kickstarted Safe Harbor’s demise and its replacement by the Privacy Shield. With a few exceptions, the chronology below starts with the Schrems ruling by the Court of Justice of the European Union (CJEU) on 6 October 2015, where the CJEU invalidated the EU-US Safe Harbour framework.

The links in this blog are up to date as of 6 August 2017.

Key current links

CJEU:

  • Challenges to the Privacy Shield are in progress before the Court of Justice of the EU: by Digital Rights Ireland (Case T-670/16) and La Quadrature du Net & others (Case T-738/16)

US:

European Commission:

  • Privacy Shield webpage
  • See also the 12 July 2016 entry (in red) in the Chronology below, for Commission and US links on the finalised Privacy Shield framework.

European Parliament:

WP29:

  • Privacy Shield Joint Review, WP29 letter to Commissioner Jourová, 15 June 2017
  • Preparation of the Privacy Shield annual Joint Review, WP29 press release 13 June 2017 - lists WP29's key concerns: legal guarantees regarding automated decision making, any DoC guidance on the application of the Privacy Shield principles to organisations acting as agents/processors, definition of human resources data; evidence that bulk collection, when it exists, is “as tailored as feasible”, limited and proportionate, information on the nomination of the four missing members  of the PCLOB, the appointment of the Ombudsperson and procedures governing the Ombudsperson mechanism
  • Feedback from the visit of Working Party 29 Chair, Isabelle Falque-Pierrotin to Washington, WP29 press release, 5 April 2017 - emphasis added:
    • "...The FTC and the Ombudsperson reiterated their general support to the Privacy Shield and their willingness to help the European Commission and the WP29 in their annual review. However, some of the key functions in the Privacy Shield architecture still need to be definitely appointed following the US election (Ombudsperson, FTC commissioners and PCLOB members). In addition, the organization of the annual review must be discussed in depth and in detail with the US authorities especially regarding access to documents. In that regard, Isabelle Falque-Pierrotin recalls that the objective of this annual review exercise is to verify through concrete evidences if US commitments under the Privacy Shield are fulfilled. It is essential that US authorities provide substance and demonstrate to EU stakeholders that the system is in place and works effectively so that this instrument ensures real and effective protection to EU data according to EU standards. The civil society expressed its concerns on the current context at national level especially on the renewal of Section 702 and on the overturn of FCC ebroadband privacy rules. The US Business industry supports the Privacy Shield as a solution bringing legal certainty to their transfers of data from the EU. In this context, the WP29 engaged at this plenary the discussions with the Commission as regard the organization of the joint review."
    • Visit of Working Party 29 Chair, Isabelle Falque-Pierrotin, in Washington, WP29 press release, 31 March 2017
  • Form for submission of requests to the US Ombudsperson
  • Rules of procedure for the submission of requests to the Ombudsperson via the “EU Centralised Body” under Rec.119 Shield Decision and Annex III on Privacy Shield Ombudsperson mechanism
  • Rules of procedure for the informal panel of DPAs under Rec.49 Shield Decision & supplemental principle III.5 ( Operation of DPA Panels), Annex II
  • Complaint form for submitting commercial related complaints (i.e. complaints about US organisations under the Privacy Shield) to EU DPAs
  • EU-US Privacy Shield - F A Q for European Individuals - wp246
  • EU-US Privacy Shield - F A Q for European Businesses - wp245

Pinsent Masons note on the final Privacy Shield (full disclosure – I was involved in this).

Chronology (reverse order)

For abbreviations, see the end.

31 March 2017

EU-U.S. data flows and data protection: opportunities and challenges in the digital era: speech by Commissioner Jourová in Washington D.C., announcing the first joint annual review of the Privacy Shield for September 2017.

29 March 2017

Announcement of Commissioner Jourová's visit to Washington D.C. to discuss, inter alia, the Privacy Shield.

27 January 2017

Taking data protection into a digital and globalised era: Joint Statement by Vice-President Ansip and Commissioner Jourová ahead of the 2017 Data Protection day, including: "Now, over 1700 companies have signed up to the Privacy Shield, with 700 further applications in the pipeline. We will continue to promote our data protection values at international level. This is why we will actively engage with key partners, such as Japan and South Korea, to reach adequacy decisions."

31 Oct 2016

Re-certifications under Safe Harbor will no longer be accepted (see US Department of Commerce Safe Harbor webpage).

19 Sept 2016

Subscribers to Privacy Shield as at this date (see the list) include, among cloud providers, Amazon, Google, Microsoft, Salesforce and Workday, but not yet Dropbox, Facebook, IBM or Twitter.

2 Aug 2016

US:

1 Aug 2016

Privacy Shield Framework in force.

Commission:

US Department of Commerce note about commencement date (on old Safe Harbor webpage)

26 July 2016

WP29:

  • Press release – statement on the decision of the European Commission on the EU-U.S. Privacy Shield, noting:
    • the continuing lack of ‘specific rules on automated decisions and of a general right to object’
    • lack of clarity regarding how the Privacy Shield’s principles apply to processors
    • guarantees regarding the Ombudsperson were less strict than ‘expected’
    • lack of ‘concrete assurances’ that US authorities do not engage in mass indiscriminate data collection (despite ODNI’s commitment not to do so)
    • the first joint annual review of the Privacy Shield will be a ‘key moment’ for assessing its robustness and efficiency, and the review’s results regarding US authorities’ access to data transferred under the Privacy Shield ‘may also impact’ Mechanisms such as SCCs and BCRs
      • Does this imply that most DPAs will hold off from taking action regarding SCCs or BCRs until the first annual review?

12 July 2016

Privacy Shield adequacy decision adopted by Commission.

Commission:

US Department of Commerce:

Other:

  • Criticism by Max Schrems and MEP Jan-Philipp Albrecht, Irish Times

8 July 2016

Art. 31 Committee meeting approving Privacy Shield.

Commission:

Art. 31 Committee:

1 July 2016

WP29:

30 May 2016

European Data Protection Supervisor (EDPS):

26 May 2016

European Parliament:

25 May 2016

Ireland:

  • Irish Data Protection Commissioner announces it is to refer the validity of SCCs to the CJEU
    • Note: the model clauses Decisions suffer from the same flaw regarding DPA powers as the Safe Harbor Decision, see Schrems summary below, and the Commission has not corrected that defect despite its November 2015 Communication (see below), so the SCCs Decisions could well be invalidated on that basis alone, regardless of US surveillance issues

13 April 2016

WP29 issued its opinion on draft Privacy Shield documents and a document on essential guarantees regarding state surveillance.

WP29:

  • Press release - statement on the opinion on the EU-US Privacy Shield
  • Opinion 01/2016 on the EU–U.S. Privacy Shield draft adequacy decision (WP238):
    • ‘Significant improvements’ over Safe Harbour, but 3 key concerns…
      • no obligation to delete personal data that had served its purpose
      • no full exclusion of massive and indiscriminate data collection; and
      • the sufficiency of the proposed Ombudsperson’s powers and independence.
    • Also:
      • key EU data protection law principles were not reflected in the draft Shield documents (notably purpose limitation, data retention/deletion and automated decision-making)
      • ‘onward transfers’ were ‘insufficiently framed’, especially their scope, purpose limitation and ‘guarantees’ applying to transfers to agents
      • the proposed new recourse mechanisms seemed difficult for individuals to use and needed further clarification; and
      • the draft decision contained only limited information regarding the complex issue of access to Privacy Shield data by US law enforcement authorities.
    • The Privacy Shield will need review after the GDPR becomes applicable in 2018.
  • Working Document 01/2016 on the justification of interferences with the fundamental rights to privacy and data protection through surveillance measures when transferring personal data (European Essential Guarantees) (WP237) - 4 essential guarantees regarding intelligence activities, based on Schrems and other relevant EU and European Court of Human Rights case law:
    1. Clear, precise, accessible rules for processing, enabling individuals to have reasonable foreknowledge of what might happen to their personal data
    2. Demonstrating necessity and proportionality regarding the legitimate objectives pursued (generally national security)
    3. An independent, effective oversight mechanism; and
    4. Effective remedies for individuals before an independent body.

18 Mar 2016

European Parliament:

29 Feb 2016

Draft Privacy Shield documents released.

EU:

WP29:

US:

11 Feb 2016

ICO:

3 Feb 2016

WP29:

2 Feb 2016

Political agreement between EU and US on new Privacy Shield.

Commission:

US:

 

6 Nov 2015

Commission Communication on the Transfer of Personal Data from the EU to the United States of America under Directive 95/46/EC following the Judgment by the Court of Justice in Case C-362/14 (Schrems), COM(2015) 566 final

  • Model clauses (SCCs) and BCRs still usable for transfers to US; also derogations
  • The Commission is ‘shortly’ preparing a decision, to be adopted pursuant to the applicable comitology procedure, replacing the provision limiting DPAs’ powers (one of the bases on which the Schrems court invalidated the Safe Harbour Decision) in all existing adequacy decisions (pgs. 14-15)
    • No such decision has been issued as at 19 September 2016

27 Oct 2015

ICO:

  • The US Safe Harbor – breached but perhaps not destroyed!
    • There is still a measure of protection for personal data transferred under the scheme – the privacy principles that members sign up to are still positive, for instance. But the assurance that meant Safe Harbor was automatically considered to provide the adequate protection required under the 8th data protection principle is no longer there
    • Don’t panic, take stock, make your own mind up (self-assessment of adequacy)
    • We’re certainly not rushing to use our enforcement powers
    • We’ll consider complaints from affected individuals, whatever transfer mechanism you’re relying on, but we’ll be sticking to our published enforcement criteria

26 October 2015

Germany:

  • Rhineland-Pfalz’s DPA asked 122 large organizations how they were implementing their US transfers; 53% answered satisfactorily, with the DPA remarking, without mentioning SCCs, that their privacy-protective positions regarding ‘no-cloud policies’ or preference of EU providers had paid off

21 October 2015

Germany:

  • DSK Position Paper - Special meeting of the Conference of Data Protection Commissioners (DSK) (German DPAs) in Frankfurt
    • Transfers to the US based ‘exclusively’ on Safe Harbor are ‘inadmissible’
    • The admissibility of transfers to the US based on model clauses (standard contractual clauses) or binding corporate rules (BCR), is also questionable
    • For the time being, [German] data protection authorities will not issue any new permission for data transfers to the  US  based on binding corporate  rules  (BCR) or data  export contracts. 
      • Presumably “data export contracts” are ad hoc contracts not model clauses, which strictly under the DPD should not require authorisation
  • Numerous individual German DPA positions – not linked to here

16 Oct 2015

WP29:

  • Statement on implementing Schrems
    • transfers to the US relying on Safe Harbour are invalid
    • ‘massive and indiscriminate surveillance’ was a ‘key element’ of the CJEU’s analysis
    • urgent ‘legal and technical’ solutions needed to enable transfers to ‘the territory’ of the US ‘that respect fundamental rights’
    • SCCs and BCRs still usable (although DPAs could still investigate complaints)
    • if, by the end of January 2016, no appropriate solution was found with the US, and depending on its assessment of transfer tools, EU DPAs were ‘committed to take all necessary and appropriate actions, which may include coordinated enforcement actions’.
       

6 Oct 2015

C-362/14 Maximillian Schrems v Data Protection Commissioner, ECLI:EU:C:2015:650, CJEU

  • Commission’s 2000 Safe Harbour Decision was invalid:
    • Art. 1 was invalid – it did not comply with Art. 25(6) DPD or the Charter as it did not find, duly stating reasons, that that the US in fact ‘ensures’ an adequate level of protection by reason of its domestic law or its international commitments. No need to consider content of Safe Harbour principles.
    • Art. 3 was invalid – it constrained national DPAs’ powers ‘under restrictive conditions establishing a high threshold for intervention’, which the Commission had no legislative competence to do because DPAs must have ‘complete independence’ to review data subject claims under Art. 28 DPD and the Charter
    • As Art. 1 and Art. 3 were inseparable from the rest of the Decision, the entire Decision was invalid
  • No Commission adequacy decision may prevent national DPAs from examining individuals’ claims regarding the inadequate protection of their personal data transferred to a third country; but neither national courts nor DPAs can declare Commission decisions invalid, only the CJEU can do so
  • When considering the ‘adequacy’ of protection in a third country for the purposes of a Commission Art.25(6) decision, the test is whether the country’s legal regime provides ‘essentially equivalent’ protection
  • Although strictly the court’s decision rested on the Safe Harbor Decision being invalid for the reasons stated above, but it also outlined requirements for EU legislation interfering with the Charter’s fundamental rights to private life and data protection to be valid (drawn on by WP29 in its April 2016 opinion)
  • Note: all other Commission adequacy decisions, eg on SCCs or ‘whitelisting’ certain countries for transfers, contain the same wording as the invalidated Art. 3 of the Safe Harbour Decision - so they are all also at risk of invalidation for that reason alone

US:

10 April 2014

WP29:

2013

US:

Commission:

News breaks in June 2013 regarding NSA contractor Edward Snowden’s revelations, notably, from the Guardian:

(for a detailed timeline of stories see https://wiki.openrightsgroup.org/wiki/Guardian_and_Snowden_revelations_2013)

Abbreviations

Art. 31 Committee – a Committee of EU Member State representatives, under Art.31 DPD, that votes on Commission adequacy (or inadequacy) decisions proposed under Art. 25(6) or 25(4) DPD, and certain other decisions under the DPD (flowchart of Art. 31 Committee voting and decisions)
CharterEU Charter of Fundamental Rights
CJEU - Court of Justice of the European Union
Commission – European Commission
DPA – EU national data protection authority
DPDEU Data Protection Directive 95/46/EC
FTC – US Federal Trade Commission
ICO – UK Information Commissioner
Member State – EU Member State (see diagram on the differences between the EU, EEA, EFTA etc)
Model clauses – see SCCs
SCCs – standard contractual clauses, aka ‘model clauses’, for enabling transfers of personal data outside the EEA, under various Commission Decisions
WP29 – Article 29 Working Party, comprising EU data protection regulators, with an advisory function under Art.29 DPD.

Tuesday, 17 May 2016

Article 93(2) GDPR comitology - flowchart

Under the General Data Protection Regulation (Regulation (EU) 2016/679), the European Commission has the power to make decisions in certain areas by way of "implementing acts", subject to approval of the relevant act by a committee under Art. 93(2) of the GDPR - which will no doubt become known as the Article 93(2) Committee (or Article 93 Committee).

When considering proposals by the European Commission, this Committee must use the "examination procedure" under the EU "comitology" process, governed by Regulation (EU) No 182/2011 - the same procedure that the Article 31 Committee under the current Data Protection Directive must use.

Flowchart

Below is a flowchart I prepared showing the Article 93(2) procedure. Click on the small image below to download the full PDF flowchart (note: amended 2 June 2016 to expand on what "positive", "negative" and "no opinion" mean).

Article 93(2) GDPR

The areas where the Article 93(2) Committee procedure applies are as follows; some are quite significant so it's important to know how the procedure works.

International transfers

Most of these areas relate to "international transfers" of personal data to third countries outside the European Economic Area or to international organisations:

  • Making decisions on the adequacy of protection of third country, territory or one or more specified sectors within a third country, or an international organisation – Art. 45(3) – or conversely on inadequacy, and repealing, amending or suspending previous adequacy decisions – Art. 45(5)
  • Adopting standard data protection clauses for allowing international transfers (the successor to the current model clauses or standard contractual clauses)– Art. 46(2)(c)
  • Approving standard data protection clauses adopted by national data protection supervisory authorities (SAs) for allowing international transfers - Art. 46(2)(d)
  • Specifying the format and procedures for the exchange of information between controllers, processors and SAs for binding corporate rules (BCRs) – Art. 47(3).

Other areas

The Art. 93(2) procedure also applies to certain other areas:

  • Laying down standard contractual clauses for controller/processor and processor/sub-processor contracts - Art. 28(7)
  • Giving EU-wide validity to an approved code of conduct, amendment or extension submitted to it (following its approval by an SA and the European Data Protection Board) - Art. 40(9)
  • Laying down technical standards for certification mechanisms and data protection seals and marks, and mechanisms to promote and recognise those certification mechanisms, seals and marks - Art. 43(9)

    (Note that the last two are relevant to international transfers also, in that transfers may be permitted to recipients who adhere to an approved code or obtain an approved certification, and who also make legally-binding commitments to apply the "appropriate safeguards" - Art. 46(2)(f).)
  • Specifying the format and procedures for mutual assistance betwee SAs and arrangements for the electronic exchange of information between SAs, and between SAs and the Board, in particular the standardised electronic format for SAs to supply information requested by other SAs – Art. 61(9)
  • Implementing acts of general scope to specify arrangements for exchange of information by electronic means between SAs and between SAs and the European Data Protection Board - Art. 67.

Article 31 Committee flowchart - Privacy Shield

The proposed EU-US Privacy Shield, intended to replace the Safe Harbour regime invalidated by the Court of Justice of the EU in Schrems, is currently being considered by a committee of representatives of EU Member States under Article 31 of the Data Protection Directive - known, of course, as the "Article 31 Committee".

When considering proposals by the European Commission, such as its draft adequacy decision to approve the Privacy Shield, this Committee must use the "examination procedure" under the EU "comitology" process, governed by Regulation (EU) No 182/2011.

Comitology is somewhat convoluted, so I've produced a flowchart explaining the different options, depending on what opinion the Article 31 Committee issues - expected to be in June 2016, but at this rate it may be later!

Explanatory paragraph added 13 June 2016: Note that the Data Protection Directive was amended from November 2003 by Regulation (EC) No 1882/2003. That changed the Article 31 Committee procedure from the one in the original Data Protection Directive, that gave the Council the final say, to the procedure set out in Decision 1999/468/EC. The 1999 Decision was itself amended a couple of times, and eventually replaced by Regulation (EU) No 182/2011. My flowchart reflects the Regulation 182/2011 procedure, which is now the applicable procedure for comitology under Article 31 of the Data Protection Directive.

There are other flowcharts on comitology, but mine just shows what's relevant to the Article 31 Committee and not other areas of law, and I believe it's clear but still informative.

Click on the small image below to download the full PDF flowchart (note: amended 2 June 2016 to expand on what "positive", "negative" and "no opinion" mean).

Monday, 7 September 2015

Search UK Information Tribunal decisions - full text


To search the full text of all UK Information Tribunal decisions using Google's very helpful site search facility, e.g. for data protection or freedom of information decisions, enter search term(s) in the box below, using quotes around a phrase, then click Submit or press Enter.


This is much more user-friendly than trying to use the Information Tribunal website's built-in search function, which doesn't allow full text searching and makes you select rather cumbersome filters.

Yes, you could also search them via Bailii, but I prefer using Google.

Monday, 12 January 2015

Data Protection Directive vs draft General Data Protection Regulation - infographics only

Here are comparative infographics on the progress of EU data protection legislation (Data Protection Directive versus draft General Data Protection Regulation). Click on a diagram to enlarge it. For comparative infographics on EU data protection legislative progress (DPD vs GDPR) together with a commentary, click here.

DPD vs GDPR - summary

DPD vs GDPR - rough scale (vital statistics)
DPD vs GDPR Parliament - number of amendments DPD vs GDPR - Council drafts - number of footnotes  DPD vs GDPR - number of Member States
DPD vs GDPR - comparative timetables  

Data Protection Directive vs draft Data Protection Regulation - infographics & commentary

The diagrams below compare the legislative progress and timing of the EU's 1995 Data Protection Directive (DPD) and the draft General Data Protection Regulation (GDPR). Click on a diagram for the larger version. For just the comparative infographics on EU data protection legislative progress, click here.

European Commission

The DPD was proposed by the European Commission in 1990, and adopted in 1995. The GDPR was proposed by the European Commission in Jan 2012, as part of a data protection reform package, to update the DPD.

The following diagram shows the number of Articles, Recitals and pages of legislative text (ie excluding explanatory commentary/notes, background material) in the 1990 DPD draft as compared with the 1995 DPD and the 2012 GDPR draft:

DPD vs GDPR - rough scale (vital statistics)



(Note: the 1995 DPD page count is not included as no "like for like" comparison is possible - the Official Journal PDF is 2-column and the font size, spacing etc are different.)

If you like, the vital statistics for the DPD (original 1990 proposal) and GDPR (1992 Commission proposal) are respectively:
  • DPD (1990 proposal): 33-24-27
  • GDPR (2012 proposal): 91-139-82

Before the GDPR can become law, it must be approved by both:
  • the European Parliament, ie elected MEPs, and
  • the Council of the EU aka Council of Ministers, ie EU national governments.
These EU institutions must agree on the same text, and a conciliation procedure may be invoked if necessary, inevitably involving negotiation and compromise. (For more info, see an outline of the EU's lawmaking procedures; key EU institutions; and main legislative info/documents on the GDPR).

In the European Parliament

The Parliament's lead committee appointed to scrutinise the GDPR was its Committee on Civil Liberties, Justice and Home Affairs (LIBE, rapporteur Jan Philipp Albrecht). LIBE's report to Parliament suggested numerous amendments to the Commission's text, taking account of input from several other Parliamentary committees including various amendments they proposed. Parliament adopted this unamended at its 1st reading of the GDPR on 12 Mar 2014.

The infographic below shows, for each of the DPD and GDPR, the number of amendments proposed by Parliamentary committees and the number of amendments actually approved by Parliament at its 1st reading.

DPD vs GDPR Parliament - number of amendments

In the Council

The Council of Ministers (comprising EU Member State national government ministers and the Commission) has, from the outset, been trying to agree its own position internally. Approval by the Council requires only a qualified majority vote rather than eg unanimity. Only after a draft text has been settled within the Council, can the task of agreeing a text with Parliament begin. It won't be easy: even now, there are many significant differences between the Parliament and latest Council versions.

Numerous Council documents have been released, many on specific parts only of the draft GDPR. As at Jan 2015, only three versions are available of the full consolidated draft GDPR text being discussed in Council - two officially published, the latest one leaked. The diagram below compares the number of footnotes in each consolidated draft version. The number of footnotes is used as a rough indication of the scale of Member State issues with the GDPR text, as most (though not all) footnotes contain reservations or similar statements by Member States or the Commission.
DPD vs GDPR - Council drafts - number of footnotes

Number of EU Member States

During the passage of the DPD, there were 12 EU Member States (becoming 15 on 1 Jan 1995, when Austria, Finland and Sweden joined).

When the GDPR was proposed by the Commission on 25 Jan 2012, there were 27 Member States (becoming 28 on 1 July 2013, when Croatia joined). So now there's nearly double the number of Member States as there was in the 1990s, to raise and agree issues in Council.

DPD vs GDPR - number of Member States

Timeline

The figure below compares the timelines of the DPD and GDPR.

DPD vs GDPR - comparative timetables

Official statements have been made signalling the aim of agreeing the GDPR by the end of 2015 or even earlier, eg:
  • Vice-President for the Digital Single Market Commissioner Andrus Ansip: "During the first six months of the Commission’s mandate, I will support Commissioner designate Jourová and work with you and the Council to finalise the reform of data protection rules".
  • Commissioner for Justice, Consumers and Gender Equality Věra Jourová: "I see it as an important project of the whole Commission to ensure the swift adoption of the EU data protection reform… I strive for the adoption of the European data protection reform package within the first six months of the mandate".
  • Commissioner for Digital Economy and Society Günther Oettinger: "my legislative priority will be
    to support the Vice-President for the Digital
    Single Market and the Commissioner for
    Justice, Consumers and Gender Equality in finalising the negotiations on an ambitious Data Protection Regulation in 2015…".
  • In the Council, in early Dec 2014, "Progress was made by justice ministers on the EU data protection framework…" and the Council's President Andrea Orlando said "Today we have agreed on two of the most politically sensitive issues on data protection reform. We see this as an important result for the Presidency, and a decisive step towards achieving global agreement on this complex and important file"
  • The Commission recently stated "In 2015, as part of the Digital Single Market Strategy, the Commission will aim to conclude ongoing inter-institutional negotiations on proposals such as the common European data protection reform and the Regulation on a Connected Continent."
  • Calls were made by several national Parliamentary delegations for adoption "by 2015". Parliament's motivation to ensure the GDPR goes through may well be bolstered by the reincarnation of GDPR instigator Commissioner Reding as an MEP (Member of European Parliament) who, as Martin Hoskins irreverently puts it, may not want to pass up "the opportunity of being forever associated with a once-in-a-generation opportunity to reset data protection rules".
However, notwithstanding the political pressures, it's difficult to predict when if ever the GDPR will go through, particularly in light of:
  • the number of Member State issues within the Council, as suggested by the number of footnotes;
  • the far greater number of Member States there are now than in the 1990s; and, not least
  • the current vast differences between the texts propounded by Parliament and Council, which will have to be bridged somehow.
Certainly, Parliament's GDPR rapporteur J P Albrecht has doubted whether the GDPR could be agreed by the end of 2015.

    Summary

    The figures from the diagrams above are consolidated below in a single infographic.

    DPD vs GDPR - summary
    There's a risk that the GDPR may end up being worse than the DPD for data subjects, and indeed also controllers and processors. See for example Chris Pounder's concerns regarding greater flexibility for Member States to make their own rules, particularly more national exemptions from data protection law requirements. I hope to blog my own specific concerns at a later date.

    We need better laws, better enforced by better-resourced regulators. And by "better laws" I mean sensible, realistic, understandable, clear, technology-neutral laws. It remains to be seen whether the GDPR will achieve that goal.



    Sources/references

    Parliament

    Figures for the DPD are derived from:
    • the report of the lead committee for the DPD, the Committee on Legal Affairs and Citizens' Rights (JURI) PE 148.286/fin A3-0010/92 15 Jan 1992, rapporteur Geoffrey Hoon. This refers to PE 148.286/rev./Am.212-293, ie 293 amendments were proposed by that committee, and appends opinions of other committees showing their proposed amendments: ECON 39, ENER 9, ENVI 22
    • Parliament's resolution and amendments 11 Mar 1992 (OJ C 94/173, 13 Apr 1992).
    Figures for the GDPR are derived from:

    Council

    Figures for the DPD are derived from:
    • 9951/94 (12 Oct 1994);
    • 11099/94 (30 Nov 1994).
    Figures for the GDPR are derived from:
    Note: the Council of Ministers is not the same as the European Council.

    General

    For a very readable book on how laws affecting the Internet should be made if they are to have any chance of being effective in practice, see Chris Reed's excellent "Making Laws for Cyberspace".