European Ministers Agree To Disagree On Data Protection Reform

A long running reform of European data protection legislation which kicked off in 2012 has passed a big milestone today; ministers in the European Council have ostensibly agreed on a general approach — allowing for the debate to move to the next stage and the potential for reform negotiations to be wrapped up by the end of the year.

The European Commission said today that trialogue negotiations with the Parliament and the Council will start this month — with a “shared ambition” of reaching a “final agreement” by the end of 2015.

The European Parliament gave its backing to proposed new data protection rules back in March 2014. However the agreement reached by the Council introduces plenty of amendments and rewrites to those earlier proposals. (The full text endorsed by ministers can be found here.)

The EC states that today’s general approach includes agreement from EU justice ministers on areas such as:

  • establishing a single set of rules on data protection, valid across the EU — with the aim of reducing the burden on businesses operating in the region, including by stripping out “unnecessary administrative requirements, such as notification requirements for companies”
  • strengthening existing rights such as the so-called ‘right to be forgotten’, and improving citizens’ rights to be informed if their data is hacked. There is also support for a right to data portability to make it easier for users to transfer personal data between service providers
  • requirements that companies based outside the EU have to apply the same rules when offering services inside the EU
  • increased powers for national data protection regulators to enforce rules, including increased fines for data protection violations (of up to €1 million or up to 2% of the global annual turnover)
  • the notion of a one-stop-shop “single supervisory authority” for data protection to streamline doing business and consumer protection for citizens

But claims of a “big step forward” in agreeing modernizing EU data protection rules looks rather like political spin on the part of the Commission — judging by the number of “carve outs” for how member states can enact the legislation, based on the Council’s amendments to the proposals.

In other words, there looks to be so much dilution afforded by allowing member states flexibility that both regulatory consistency and privacy protections have been significantly eroded in order to achieve agreement among ministers.

As one data protection training company, Amberhawk, notes in a blog (referencing leaked versions of the Council’s text):

In summary, there are 35 flexible provisions to be implemented by 26 Member States in their own way; this can result in 26 separate data protection laws which could have significant differences in 35 Articles  The Commission’s objective of obtaining a consistent data protection approach has comprehensively failed.

Digital rights organization Access has also criticized the Council’s text for including “so many loopholes it’s not even consistent with the EU Charter of Fundamental Rights”.

It writes:

In particular, the Council’s text would allow companies to collect and repeatedly use citizens’ personal information without their knowledge (Article 6.4). It would also enable companies to transfer this personal data to countries that do not have rules or a mechanism in place to ensure the protection of this data (Article 38). Simply put, under the Council text, it would be impossible for anyone to know what is happening to their personal data or who has access to it.

This follows earlier concerns from European digital rights association, the EDRi (which counts Access as a member), back in March — again based on leaked documents — that privacy protections within the data protection reforms were being systematically eroded.

So EU ministers ‘agreeing to disagree’ on data protection reform seems a fairer summary of today’s “big step forward”.

Whatever devils lurk in the details — the Council’s full text runs to 200-pages; a spokesman was unable to specify how many amendments had been made, saying “I don’t know it’s a long regulation!!” — today’s developments are not the final step in the reform process.

Next up, starting on June 24, will be the first trialogue meeting between the European Council, Commission and Parliament for further discussions. All have to agree before a new directive can be enacted so there are months of negotiations to go before Europe gets a new data protection directive.

And if the discrepancy between what MEPs agreed and what the Council of ministers prefers is as large as it appears then those negotiations are going to have some sizable sticking points.