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Europe Finally Agrees Tough New Data Protection Rules
Posted Dec 16, 2015 by Natasha Lomas (@riptari)
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Europe Finally Agrees Tough New Data Protection Rules
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Late yesterday European institutions finally agreed on the text of new
data protection rules (GDPR), more than three years after new
regulation was proposed.
The 28 Member States of the European Union will have two years to
transpose the provisions of the GDPR into their national laws, with the
regulation set to come into force from 2018.
There are still a few more stages in the process — although the
Parliament, Council and Commission agreed the text yesterday there’s a
further confirmation vote tomorrow by the Civil Liberties Committee,
and another vote by the European Parliament as a whole in the
new year — but the Commission’s aim of finalizing data protection
reform in 2015 has been met.
I put #GDPR on the table in 2012. @Europarl_EN pushed for it while
@EUCouncil stood on the brakes. It took too long, but now there is a
deal
— Viviane Reding (@VivianeRedingEU) December 16, 2015
Věra Jourová, Commissioner for Justice, Consumers and Gender Equality,
dubbed the rules “clear” and “fit for the digital age”. The current
European data protection directive was adopted back in 1995 so updating
the bloc’s rules to keep pace with seismic shifts in technology is the
overarching aim here, along with a parallel push to harmonize
regulations across the region with the goal of creating a
so-called “Digital Single Market” to simplify operations for businesses
selling services in Europe.
Commenting on the agreement in a statement, Andrus Ansip, VP for the
Digital Single Market, argued the GDPR will “remove barriers and unlock
opportunities”. He also tacitly rebutted critics of the new
rules. Brussels has been host to a small army of lobbyists during the
data protection directive negotiation process, with the U.S. government
and tech giants such Facebook and Google actively seeking to water down
proposals.
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“The digital future of Europe can only be built on trust. With solid
common standards for data protection, people can be sure they are in
control of their personal information. And they can enjoy all the
services and opportunities of a Digital Single Market. We should not
see privacy and data protection as holding back economic activities.
They are, in fact, an essential competitive advantage,” said Ansip.
“Today’s agreement builds a strong basis to help Europe develop
innovative digital services. Our next step is now to remove unjustified
barriers which limit cross-border data flow: local practice and
sometimes national law, limiting storage and processing of certain data
outside national territory. So let us move ahead and build an open and
thriving data economy in the EU — based on the highest data protection
standards and without unjustified barriers,” he added.
Dropping like a nuclear bomb into the midst of the data
protection reform discussions were the 2013 Snowden disclosures, which
revealed the extent of U.S. government mass surveillance programs and
detailed how intelligence agencies were tapping directly into
consumer data held by commercial firms like Facebook. The fallout from
those revelations acted as a counterweight to high level U.S. lobbying
against strengthening privacy protections.
The Snowden disclosures also played a key role in convincing the
European Court of Justice to strike down the fifteen year old Safe
Harbor transatlantic data transfer agreement, this fall. EC officials
are currently engaged in negotiations with their U.S. counterparts to
try to hammer out a new deal — with a deadline set for that of January
2016. If you’re interested in geopolitical data protection politics
these have been very interesting days indeed.
That’s the backstory, but what’s incoming in the new GDPR? It’s worth
noting that the full text has not yet been published (Update: it has
now been published here) but the general thrust is billed as
strengthening individuals’ data protection rights, giving Europeans a
greater say in how their data is used — as well as seeking to
streamline some elements of compliance for businesses.
The new rules will apply to any companies who have customers in the
region regardless of whether the company itself is based outside
Europe.
Some key provisions in the GDPR include:
* fines of up to 4 per cent of a company’s global turnover for
breaching data protection rules — which for big tech companies like
Google could result in fines that run to billions of dollars
* liability for data breaches extending to any data processors a data
controller also uses — so also applying to any third party entities
involved in processing data to provide a particular service, with
plenty of implications for cloud-based business models
* enshrining a so-called ‘right to be forgotten‘ in law, so when an
individual no longer wants their data to be processed by a company,
and “provided that there are no legitimate grounds for retaining
it”, the data must be deleted. Huge implications for digital
marketing
* a requirement for companies to appoint a data protection officer if
they process sensitive data on a large scale or collect info on
many consumers, with an exemption for SMEs if data processing is
not their core business activity
* a requirement for companies and organizations to notify the
relevant national supervisory authority of serious data breaches as
soon as possible
* parental consent required for children to use social media, with
the specific age within a 13 to 16 year old bracket to be set by
individual Member States
* a one-stop-shop single supervisory authority for data protection
complaints aimed at streamlining compliance for businesses
* a right to data portability for individuals to enable them to more
easily transfer their personal data between services
Commenting in a statement, Green MEP Jan Philipp Albrecht, who led the
European Parliament’s negotiations, said: “The regulation returns
control over citizens’ personal data to citizens. Companies will not be
allowed to divulge information that they have received for a particular
purpose without the permission of the person concerned. Consumers will
have to give their explicit consent to the use of their data.”
As with any new law, the devil will be in the interpretative detail
around specific clauses and exemptions. And with 28 Member States all
needing to interpret and transpose the regulation into their own
national law there is inevitably going to be variation in how the GDPR
is applied across the region. So one thing is certain: lawyers won’t be
short of work as businesses seek to understand how they are affected
and what they need to do to ensure compliance — and avoid the risk of a
big fine.
#EUdataP: First impression of final text: - Level of protection
equivalent or partly lower than nat. laws - Enforcement massively
beefed up
— Max Schrems (@maxschrems) December 16, 2015
Featured Image: Anton Balazh/Shutterstock (IMAGE HAS BEEN MODIFIED)
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