EU Presidency Seeks Political Guidance On Most Contested Aspects Of The Draft Data Protection Regulation

Author:Ms Cynthia O'Donoghue
Profession:Reed Smith

On 24 April 2013, the EU Presidency, currently held by Ireland, prepared a Note to the Committee of Permanent Representatives (COREPER) regarding the proposed General Data Protection Regulation (Regulation). The Note was leaked and published on Statewatch's website. Statewatch is a civil liberties organisation. In the Note, the Presidency discusses "pivotal issues, the resolution of which requires political guidance," including the scope of the Regulation and the requirement for "explicit"' consent. The Annex to the Note proposes specific drafting amendments.

The Note focusses on five key issues:

Material scope Territorial scope (or jurisdiction) Consent Data processing principles Freedom of expression and access to public documents The proposed Regulation excludes data processing where the activity is outside the scope of EU law, and processing by EU institutions and law enforcement, both of which are considered problematic. Concern was also raised about the exclusion of household uses, which as drafted would exempt processing" by a natural person without any gainful interest in the course of its own exclusively personal or household activity." Most delegations wanted the scope of the household exemption clarified, and the Presidency proposed a compromise extending the provision to all social networking and online activities carried on in the context of personal and household activity. The Note acknowledged that the territorial scope of the Regulation is ambitious by seeking to govern "the offering of goods or services (...) to data subjects in the Union," or "the monitoring of their behaviour as far as their behaviour takes place within the European Union." The Presidency suggested setting out factors that...

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