The New EU General Data Protection Regulation – A First Assessment
The results of the trilogue of the EU institutions (European Parliament, Commission and Council) on the data protection reform package is an important milestone on the way into the global information society. The General Data Protection Regulation (GDPR) will replace 28 different data protection laws of the Member States.
The reach of the new legal framework extends beyond the European Union. Even companies with headquarters outside the EU will have to comply with the GDPR so far they are doing business in EU Member States and process data generated here (article 3 para. 2). Compliance with the rules is monitored by independent data protection authorities, which all have in future same, effective sanction powers. In cases of serious infringements they may impose fines up to up to 4% of the global annual turnover against the respective companies (art. 79). It has to be highlighted, that a number of last minute attempts have failed to mitigate or weaken the new privacy requirements in central points, such as on scope of the regulation or the purpose limitation rules.
Nevertheless, there are also areas where the result is less positive than hoped for. Thus, the EP has not been completely successful in the requirements on individual consent to the processing of personal data (‘the data subject’s consent’ means any freely given, specific, informed and unambiguous indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative, signifies agreement to personal data relating to them being processed“ – article 4 para 8). Explicit consent is only required if censent refers to “special categories of personal data” (article 9) – such as health data or genetic information. Also the rules on profiling lag behind the demands of privacy advocates. The relevant provisions are limited to decisions based solely on automated processing, which produce legal effects concerning the data subject or similarly significantly affects him or her (article 20).
During the negotiations critics – in particular from Germany – complained the GDPR would weaken or undermine the data protection requirements defined by national law. Today we can say, this fear did not realize, at least in general. Only in specific areas the new legal requirements are lagging behind the present national laws, for example with regard to the more stringent data protection provisions for Internet services of the German Telemedia Act. On the other hand, the German data protection level is just here high only in theory, but not de facto. This became evident from the example Facebook: German data protection authorities have failed with lawsuits against the company with European headquarters is located in Dublin – to undertake to comply with the German data protection rules. However, every company that does business in Europe in future must comply with the new single European data protection law. This is real progress, even if the GDPR in certain areas lagging behind the national law. In addition, there are other areas – such as the Federal Citizens Registration Act – where data protection requirements of new EU regulation are stricter than the present German legislature. The unconditional dissemination of public register data on request to everybody is not compatible any more with European law and must be terminated.
Light and shadow there is also in the rules on the internal data protection officer (DPO). On the one hand, article 35 obliges public authorities and government agencies – except for courts acting in their judicial capacity – to designate a DPO. Also those private companies have to designate a DPO, whose „core activities consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and stematic monitoring of data subjects on a large scale“ or with core activities consisting „of processing on a large scale of special categories of data pursuant to Article 9 and data relating to criminal convictions and offences“. However, the significantly more stringent requirements of the German Federal Data Protection Act on DPOs have not completely been included in the GDPR. At least the adopted text allows the national legislators to stick to the mandatory designation of DPO (article 35 (4): “in cases other than those referred to in paragraph 1, the controller or processor … may or, where required by Union or Member State law shall, designate a data protection officer …“) .
Even if, as expected, the provisions now adopted – the GDPR and the Directive on data protection for police and justice – will soon pass the formal EU legislative procedure, a lot of work has to be done at European and at national level prior to their entry into force 2018: At EU level the compatibility of other legal provisions with the GDPR has to be reviewed. This particularly applies to the directive on data protection in electronic communications (“ePrivacy Directive“). Governments and parliaments of the Member States are requested to review their national law. This applies in particular for Germany with its numerous sector specific data protection provisions. Many laws need to be revised, some need to be eliminated. A special mission coming to the national legislators is the processing of personal data in the employment context. Article 82 GDPR provides the national legislators with competence to regulate the handling of employee data in detail. („Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees‘ personal data in the employment context, …“).
National regulators have also to deal with the question of how far the legal provisions for data processing for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties need to be adapted to the requirements of the new Data Protection Directive for police and justice.
Finally, businesses and public authorities have to adapt their practices to the new rules. New processes and procedures have to be designed, existing procedures need to be changed …
The European Academy for Freedom of Information and Data Protection (EAID), Berlin, will focus in the coming years on the impact of new EU data protection rules. For 2016 we are planning workshops for decision-makers in business, politics and administration on implementation of the new EU rules and on needs for revision of national legislation.