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Focus on draft EU Data Protection Regulation

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Earlier this month, I sent DMA members an update on the proposed EU Data Protection Regulation, as it continues its progress through the European Union institutions. The Regulation is moving at a slow pace, but there’s a lot of activity both here in the UK and in Brussels. This article looks at the main developments from a legislative and lobbying perspective.

Ministry of Justice (MoJ) Call for Evidence
The MoJ has published a summary of responses to its Call for Evidence on the proposed Regulation. Of the 143 responses received, two-thirds came from private sector.

While a revised law in this area has been generally welcomed, to keep pace with changing technology, UK businesses have expressed concerns about the impact of changes – concerns which the Government will now take to Europe. The Government will support new measures that improve data protection for UK citizens – giving them confidence that their data will be processed fairly and held to secure standards.

Other measures would include more rights for individuals to delete their personal data and be informed if their data is compromised. However, the Government promises to fight in Brussels to make sure the plans don’t impose unnecessary burdens on businesses.

UK Parliament
As this is a piece of European legislation, it is not subject to the usual legislative process of a UK Bill in Parliament. However, the House of Commons Justice Select Committee has been asked by the Commons European Scrutiny Committee to look at the Regulation.

This will take the form of a short Inquiry, probably comprising two oral evidence sessions. The Inquiry itself is likely to take place in September, and the Committee will be looking to report by October. The DMA will prepare a submission to the Committee by the 20 August deadline for responses.

UK Data Industry Group
The DMA is chairing an Industry Data Group under the umbrella of the Advertising Association, to coordinate lobbying activity. Lord McNally, Minister of State at the Ministry of Justice has agreed to attend a round table in the autumn to discuss the proposed Regulation. It is hoped that Ed Vaizey MP, the DCMS Minister with responsibility for the digital agenda will also attend.

DMA Research
The DMA has commissioned two pieces of research to help with industry lobbying on the draft Regulation.

1. An Economic Impact Analysis on value of industry to UK economy in terms of direct marketing spend, expenditure, employment, published today, 31 July 2012.

2. Data Privacy: What the consumer really thinks was published in June reveals how the meaning of privacy is changing, how people decide whether or not to share their data.

EU Council of Ministers revise proposals
The EU Council Working Group, which is looking at the draft regulation, is proposing a number of amendments. Many member states find the proposed Regulation too prescriptive and blunt in its outlook on risk and harm.

The proposed changes concern only 12 of the 90 or so Articles but the proposed revised text contains many very positive changes such as:

  • Definitions for personal data and data subjects
    The definitions for personal data and data subjects have been combined and Article 4(1) now includes a helpful clause on disproportionate effort. It reads: “if identification requires a disproportionate amount of time, effort or material resources the natural living person shall not be considered identifiable.”
  • Explicit consent
    On the issues of explicit consent, 13 member states, including the UK, have concerns – many criticising the additional requirements to consent as unrealistic and querying its added value. The Irish representative underlined this sentiment by adding that explicit consent would lead to “click fatigue”. The Czech Republic proposed to replace the word “explicit” with “provable” – which could be a stricter requirement.
  • The Definition of a child
    The definition of child (Art. 4(18)) has been deleted – but the parental consent requirement for under-13s remains.
  • Under “legitimate interest” (Art. 6. (f), the revised text reinstated “or by a third party” from the 1995 Directive. This means that the first part of Art.6 (f) now reads “processing is necessary for the purposes of the legitimate interests pursued by a controller or by a third party.”

European Parliament
UK MEPs in Brussels will vote on the proposal on party lines, rather than nationality. Following a meeting with industry, Harriet Harman MP (Deputy Labour Leader) and Dan Jarvis, MP, the Shadow DCMS Minister have agreed to help mobilise UK Labour MEPs. This could be important as they are members of PSE, the largest political grouping in the European Parliament.
While the Council of Ministers’ Working Group considers the proposed legislation, discussions are also beginning in the European Parliament.

The lead committee, the EP Civil Liberties, Justice and Home Affairs Committee (LIBE) has appointed Jan-Philipp Albrecht, a German Green Party MEP as Rapporteur. He has issued a working document but his full Report will not be ready until November. In the meantime, the Committee is organising hearings and workshops with stakeholders – our European body FEDMA has been attending and reporting back. Another workshop is planned for early October.

Four other EP Committees, Internal Market; Industry, Research & Energy; Employment & Social Affairs and Legal Affairs will also consider the proposed legislation and produce their own reports on the Regulation. There is some cooperation between the five Committees but all produce their own reports.

Industry lobbying activity in Brussels
FEDMA is seeking meetings with the Rapporteurs and Shadow Rapporteurs for each Committee, and their staff, to put the industry’s case. A position paper summarises our arguments and includes some proposed amendments.

The DMA is arranging meetings with key MEPs in London and in Brussels on our own and in conjunction with FEDMA and the Advertising Association.

Within FEDMA, we are seeking to establish a lobbying network to cover national governments and MEPs in all 27 Member States; and to provide material for national DMAs and companies to use in their own countries. Where there is no active DMA, FEDMA is working with other trade bodies or approaching MEPs in Brussels directly.

It is important to coordinate what the different industry groups in Brussels are doing in terms of lobbying MEPs and suggesting amendments, and the DMA is working with FEDMA and other European trade bodies to exchange information.

Contact, Caroline Roberts, Director of Public Affairs, 020 7291 3346.

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