Data Protection Regulation: Back On Track?

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The Council of the EU has been busy discussing the draft Regulation this week. There is a press release and press conference to go with it. So what's new?

Territorial scope

There seems to be broad agreement on this. Viviane Reding, the EU Commissioner responsible, says that it's a core requirement to "create a level playing field between European and non-European businesses. All companies that want to utilise the internal market have to apply the European law". She says this is of "utmost importance".

So, no change on the plans for extra-territorial effect. US and global businesses beware!

International data transfers

Again, there seems to be broad agreement on the key principles contained in the draft Regulation. But Ministers agreed that more technical work needs to be done (no details provided) and that the question of "alternative models for international data transfer" needs to be studied in-depth.

This may be a tacit acknowledgment that the existing solutions are far from perfect. This is true. However we have a long way to go before we can achieve truly "interoperable data privacy laws" as between different parts of the globe or, for that matter, reliable privacy seals.

Big data

Many businesses are starting to look at profiling customers to learn more about them and target more products to them. Viviane Reding says that progress has been made on this. There have been suggestions that profiling is to be prohibited without the consent of the citizen. However she says, very clearly, that profiling is only prohibited if "hurts the citizen". So safeguards must apply. Very significantly, she says that this should not interfere with a business's ability to innovate. She recognises that there has to be a balance between business development and new business models.

This is a signal, contrary to what we heard last year, that big data is not dead! This is good news for businesses in all sectors who want to apply an algorithm to large volumes of data to spot patterns or trends and enable them to offer better, more personalised and effective services. We have yet to see the text on this though.

Regulation or Directive?

The UK and some other member states believe that the new law should be in the form of a Directive (with local implementation required at member state level) rather than a Regulation. Regulations are directly applicable and apply on an EU-wide basis. Viviane Reding says "I like regulations because they are efficient and they make...