Data protection issues : Différence entre versions

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==Explicit consent==
 
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'''Article 2''' - Definitions
 
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*4. Consent shall not provide a legal basis for the processing, where there is a significant imbalance between the position of the data subject and the controller.
 
*4. Consent shall not provide a legal basis for the processing, where there is a significant imbalance between the position of the data subject and the controller.
 
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===Article 29 Working Party position===
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[http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2011/wp187_en.pdf Opinion (2011) of the Article 29 Data Protection Working Party on the Definition of Consent]:
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''This Opinion is partly issued in response to a request from the Commission in the context of the ongoing review of the Data Protection Directive. It therefore contains recommendations for consideration in the review. Those recommendations include:''
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*''(i) clarifying the meaning of “unambiguous” consent and explaining that only consent that is based on statements or actions to signify agreement constitutes valid consent;''
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*''(ii) requiring data controllers to put in place mechanisms to demonstrate consent (within a general accountability obligation);''
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*''(iii) adding an explicit requirement regarding the quality and accessibility of the information forming the basis for consent, and''
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*''(iv) a number of suggestions regarding minors and others lacking legal capacity.''
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''The notion of unambiguous consent is helpful for setting up a system that is not overly rigid but provides strong protection. While it has the potential to lead to a reasonable system, unfortunately, its meaning is often misunderstood or simply ignored.''
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''Clarification should aim at emphasizing that  unambiguous consent requires the use of mechanisms that leave no doubt of the data subject’s intention to consent. At the same time it should be made clear that the use of default options which the data subject is required to modify in order to reject the processing (consent based on silence) does not in itself constitute unambiguous consent. This is especially true in the on-line environment.''
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''The Council Common Position10 in 1995 introduced the final (today's) definition of consent. It was defined as "any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed". The main change from the 1992 Commission position involved deleting the word "express" that had preceded the word "indication". At the same time, the word "unambiguous" was added to Article 7(a), so it reads as follows: "if the data subject has given his consent unambiguously".''
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{{lawbox|title=IMCO's Opinion: amendment 63|=
 
{{lawbox|title=IMCO's Opinion: amendment 63|=

Version du 9 mai 2013 à 15:10


This page aims to list and analyse the different key provisions of the European Commission's Proposal for a General Data Protection Regulation and related amendments proposed by the IMCO, ITRE, JURI and LIBE committees.

You can find all the relevant documents on this subject here.

Sommaire

Scope of the Regulation

Personal scope

1995 Directive's provisions

Article 3 - Scope
  • 1. This Directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.
  • 2. This Directive shall not apply to the processing of personal data:
    • - in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, State security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law,
    • - by a natural person in the course of a purely personal or household activity.

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Proposal's provisions

Article 2 - Material scope
  • 1. This Regulation applies to the processing of personal data wholly or partly by automated means, and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.
  • 2. This Regulation does not apply to the processing of personal data:
    • (a) in the course of an activity which falls outside the scope of Union law, in particular concerning national security;
    • (b) by the Union institutions, bodies, offices and agencies;
    • (c) by the Member States when carrying out activities which fall within the scope of Chapter 2 of the Treaty on European Union;
    • (d) by a natural person without any gainful interest in the course of its own exclusively personal or household activity;
    • (e) by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties.

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Territorial scope

1995 Directive's provisions

Article 4 - National law applicable
  • 1. Each Member State shall apply the national provisions it adopts pursuant to this Directive to the processing of personal data where:
    • (a) the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State; when the same controller is established on the territory of several Member States, he must take the necessary measures to ensure that each of these establishments complies with the obligations laid down by the national law applicable;
    • (b) the controller is not established on the Member State's territory, but in a place where its national law applies by virtue of international public law;
    • (c) the controller is not established on Community territory and, for purposes of processing personal data makes use of equipment, automated or otherwise, situated on the territory of the said Member State, unless such equipment is used only for purposes of transit through the territory of the Community.

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Proposal's provisions

Article 3 - Territorial scope
  • 1. This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union.
  • 2. This Regulation applies to the processing of personal data of data subjects residing in the Union by a controller not established in the Union, where the processing activities are related to:
    • (a) the offering of goods or services to such data subjects in the Union; or
    • (b) the monitoring of their behaviour.
  • 3. This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where the national law of a Member State applies by virtue of public international law.

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Material scope

1995 Directive's provisions

Article 2 - Definitions
  • (a) 'personal data' shall mean any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
  • (b) 'processing of personal data' ('processing') shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;

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Proposal's provisions

Article 4 - Definitions
  • 1. 'data subject' means an identified natural person or a natural person who can be identified, directly or indirectly, by means reasonably likely to be used by the controller or by any other natural or legal person, in particular by reference to an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person;
  • 2. 'personal data' means any information relating to a data subject;

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Consent & exceptions

Explicit consent

1995 Directive

Article 2 - Definitions
  • (h) 'the data subject's consent' shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.

...

Article 7 (Criteria for making data processing legitimate)

  • Member States shall provide that personal data may be processed only if:
    • (a) the data subject has unambiguously given his consent; or

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Proposal

Article 4 - Definitions
  • 8. 'the data subject's consent' means any freely given specific, informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed.

...

Article 6 - Lawfulness of processing

  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;

...

Article 7 - Conditions for consent

  • 1. The controller shall bear the burden of proof for the data subject's consent to the processing of their personal data for specified purposes.
  • 2. If the data subject's consent is to be given in the context of a written declaration which also concerns another matter, the requirement to give consent must be presented distinguishable in its appearance from this other matter.
  • 3. The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal.
  • 4. Consent shall not provide a legal basis for the processing, where there is a significant imbalance between the position of the data subject and the controller.

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Article 29 Working Party position

Opinion (2011) of the Article 29 Data Protection Working Party on the Definition of Consent:

This Opinion is partly issued in response to a request from the Commission in the context of the ongoing review of the Data Protection Directive. It therefore contains recommendations for consideration in the review. Those recommendations include:

  • (i) clarifying the meaning of “unambiguous” consent and explaining that only consent that is based on statements or actions to signify agreement constitutes valid consent;
  • (ii) requiring data controllers to put in place mechanisms to demonstrate consent (within a general accountability obligation);
  • (iii) adding an explicit requirement regarding the quality and accessibility of the information forming the basis for consent, and
  • (iv) a number of suggestions regarding minors and others lacking legal capacity.

The notion of unambiguous consent is helpful for setting up a system that is not overly rigid but provides strong protection. While it has the potential to lead to a reasonable system, unfortunately, its meaning is often misunderstood or simply ignored.

Clarification should aim at emphasizing that unambiguous consent requires the use of mechanisms that leave no doubt of the data subject’s intention to consent. At the same time it should be made clear that the use of default options which the data subject is required to modify in order to reject the processing (consent based on silence) does not in itself constitute unambiguous consent. This is especially true in the on-line environment.

The Council Common Position10 in 1995 introduced the final (today's) definition of consent. It was defined as "any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed". The main change from the 1992 Commission position involved deleting the word "express" that had preceded the word "indication". At the same time, the word "unambiguous" was added to Article 7(a), so it reads as follows: "if the data subject has given his consent unambiguously".


How to read an amendment: added to the initial text / deleted from the initial text

IMCO's Opinion: amendment 63

Article 4 - Definitions
  • 8. ‘the data subject's consent’ means any freely given indication that must be specific, informed and as explicit as possible according to the context, of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, explicitly whenever the data referred to in Article 9(1) are to be processed, signifies agreement to personal data relating to them being processed;

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How to read an amendment: added to the initial text / deleted from the initial text

ITRE's Opinion: amendment 82

Article 4 - Definitions
  • (8) ‘the data subject's consent’ means any freely given specific, informed and explicit unambiguous indication of his or her wishes by which the data subject , either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed. Silence or inactivity does not in itself indicate consent ;

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How to read an amendment: added to the initial text / deleted from the initial text

LIBE rapporteur: amendments 106 & 107

Article 7 - Conditions for consent
  • 4.(a) Consent looses its effectiveness as soon as the processing of personal data is no longer necessary for carrying out the purpose for which they were collected.

...

Article 7 - Conditions for consent

  • 4.(b) The execution of a contract or the provision of a service may not be made conditional on the consent to the processing or use of data that is not necessary for the execution of the contract or the provision of the service pursuant to Article 6(1)(b).

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LIBE members

Seven amendments have been submited by seventeen members of LIBE, proposing to withdraw the requirement for an explicit consent (amendments 757, 758, 760, 762, 764, 765 & 766)

IT Giants' recomandations to MEPs

  • Google (February 2012 document): 'a default expectation of explicit consent [...] creates uncertainty and significant burdens for organizations [and] a very real risk that by complying with the new Regulations data controllers will undermine consumer confidence and disempower the citizens' ; 'consent understood as a form of user control can be valid in different ways.'


  • Facebook (March 2012 document): '[the requirement of explicit consent] carries the risk of inundating users with tick boxes and warnings and may result in an overly disrupted or disjointed internet experience. This will inevitably lead to a potential ‘devaluation’ of the principle, and may make it harder for users to make judgments about when it is appropriate to give consent or withhold it. [...] Unambiguous consent should be a valid means of legitimizing data processing. [...] We are seeing great innovation (including granular and sophisticated control tools) from many players in the market to empower users to understand how their information is used and how services work when they choose to share information online. [...] These practices must not be hampered by over- prescriptive and often meaningless consent requirements. [...] The controller is in the best position to decide the appropriate level of information to provide individuals about specific processing activities. The information to be provided for the purposes of obtaining the data subject's consent may be determined by the data controller.'
How to read an amendment: added to the initial text / deleted from the initial text
Amendment proposed by Facebook
Article 4 - Definitions
  • 'the data subject's consent' means any freely given specific, informed and explicit unambiguous indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action or by any other method, signifies agreement to personal data relating to them being processed. The information to be provided for the purposes of obtaining the data subject's consent may be determined by the data controller in accordance with Article 5;

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  • Microsoft (February 2012 document): 'There is currently a wide range of mechanisms that effectively enable users to control and consent to collection and use of their information depending on the circumstances involved – including some opt-out technologies that provide stronger protection for consumer privacy than some opt-in mechanisms. For example, an opt-out mechanism that provides complete information on how personal data will be used is more protective of consumer privacy than an opt-in mechanism that does not provide complete information. [...] Equally important, by requiring users to opt in to every use of their data, the Regulation will potentially require internet users to opt in dozens of times, if not more, during a single web surfing session or mobile internet use. Yet consumers demand internet services that are fast, easy-to-use and efficient. Onerous and static opt-in mechanisms instituted by controllers anxious to be in unambiguous compliance with an ambiguous requirement will frustrate many users – and ultimately may lead users to opt in as a matter of routine, even in cases where their privacy would be better served by opting out.'


  • Amazon (Novembre 2012 document): 'Requiring ‘explicit’ consent as the norm for every data use scenario, irrespective of the context of data processing and the privacy risks for data subjects, is overly formalistic and rigid. It risks inhibiting legitimate and innovative business practices in the off- and online environment and impacting user experience and expectations without adding anything to users’ data protection. Consent as a means to gain user acceptance and protect fundamental rights may be devaluated as a consequence of consumers being overloaded with consent requests, making it difficult for them to understand the privacy impact of different data processing operations'
How to read an amendment: added to the initial text / deleted from the initial text
Amendment proposed by Amazon
Article 4 - Definitions
  • (8) 'the data subject's consent' means any freely given specific, and informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action or any other appropriate method commensurate to the context of and risk involved with the respective processing activity, signifies agreement to personal data relating to them being processed;

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  • eBay (November 2012 document): 'eBay believes that requiring explicit consent in every situation where consent forms the legal basis for processing personal data is too strict and creates an unnecessary obstacle to online and mobile business models. [..] Therefore, eBay proposes a context-based approach to consent to avoid ‘click-fatigue’ amongst consumers and to improve their user experience.'
How to read an amendment: added to the initial text / deleted from the initial text
Amendment proposed by eBay
Article 4 - Definitions
  • (8) 'the data subject's consent' means any freely given free, specific, and informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed expression of will, either by a statement or an action, which, in view of the context and circumstances at the time consent is required, signifies the data subject’s agreement to the processing of the personal data;

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Exceptions to consent

1995 Directive

Article 3
  • 2. This Directive shall not apply to the processing of personal data:
    • ...
    • by a natural person in the course of a purely personal or household activity.

...

Article 7

  • Member States shall provide that personal data may be processed only if:
    • (a) the data subject has unambiguously given his consent; or
    • (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or
    • (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or
    • (d) processing is necessary in order to protect the vital interests of the data subject; or
    • (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or...

...

Article 9

  • Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.

...

Article 32

  • 3. By way of derogation from paragraph 2, Member States may provide, subject to suitable safeguards, that data kept for the sole purpose of historical research need not be brought into conformity with Articles 6, 7 and 8 of this Directive.

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How to read an amendment: added to the initial text / deleted from the initial text

Proposal for a Regulation

Article 2
  • 2. This Regulation does not apply to the processing of personal data:
    • ...
    • (d) by a natural person without any gainful interest in the course of its own exclusively personal or household activity;

...

Article 6

  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
    • (c) processing is necessary for compliance with a legal obligation to which the controller is subject;
    • (d) processing is necessary in order to protect the vital interests of the data subject;
    • (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; ...
  • 2. Processing of personal data which is necessary for the purposes of historical, statistical or scientific research shall be lawful subject to the conditions and safeguards referred to in Article 83.

...

Article 80

  • 1. Member States shall provide for exemptions or derogations from the provisions on the general principles in Chapter II, the rights of the data subject in Chapter III, on controller and processor in Chapter IV, on the transfer of personal data to third countries and international organisations in Chapter V, the independent supervisory authorities in Chapter VI and on co-operation and consistency in Chapter VII for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression in order to reconcile the right to the protection of personal data with the rules governing freedom of expression.

...

Article 83

  • 1. Within the limits of this Regulation, personal data may be processed for historical, statistical or scientific research purposes only if:
    • (a) these purposes cannot be otherwise fulfilled by processing data which does not permit or not any longer permit the identification of the data subject;
    • (b) data enabling the attribution of information to an identified or identifiable data subject is kept separately from the other information as long as these purposes can be fulfilled in this manner.
  • 2. Bodies conducting historical, statistical or scientific research may publish or otherwise publicly disclose personal data only if:
    • (a) the data subject has given consent, subject to the conditions laid down in Article 7;
    • (b) the publication of personal data is necessary to present research findings or to facilitate research insofar as the interests or the fundamental rights or freedoms of the data subject do not override these interests; or
    • (c) the data subject has made the data public.

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Legitimate Interest

1995 Directive

Article 7 - Criteria for making data processing legitimate
  • Member States shall provide that personal data may be processed only if:
    • (a) the data subject has unambiguously given his consent; or
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1).

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Proposal

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This shall not apply to processing carried out by public authorities in the performance of their tasks.

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Unlike the Directive, the Proposal for a Regulation only refers to the legitimate interest pursued "by a controler", and not to the one pursued "by the controller or by the third party or parties to whom the data are disclosed".

At first sight, the exception set by the Proposal seems narrower. But the Commission clearly explained to Member States representatives that its scope is actually unchanged (Council of the EU, July 2012): "In response to questions posed by [Cyrpus] and other [Member States] regarding the rational for the omission of a third party’s legitimate interest as legal basis for the disclosure of data, the [Commission] explained, as we have understood, that upon the receipt of the data the third party becomes “another” controller and thus it is no longer necessary to refer to third parties." (Cyprus) ; "As we understand the explanations given by the Commission ’a controller’ is supposed to include both the controller and the third party, given that the third party is also a controller." (Sweden).

The Proposal defines a "controller" as "the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data [...]" (article 4.e), this "processing" meaning "any operation or set of operations which is performed upon personal data [...] such as collection, [...] storage, [...] consultation, use, disclosure by transmission [...];" (article 4.c). Thus, anyone consulting or using personal data is a controller. And the "legitimate interest" exception, as it is defined in the Proposal, would allow companies to process personal data without data subject's consent if those data are intended to be disclosed to anyone willing to consult or use those data and having a legitimate interest to do so.


How to read an amendment: added to the initial text / deleted from the initial text

IMCO's Opinion: amendment 70

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller or controllers or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This shall not apply to processing carried out by public authorities in the performance of their tasks.

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How to read an amendment: added to the initial text / deleted from the initial text

ITRE's Opinion: amendment 100

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by, or on behalf of a controller or a processor, or by a third party or parties in whose interest the data is processed, including for the security of processing, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This The interest or fundamental rights and freedoms of the data subject shall not apply to over-ride processing carried out by public authorities in the performance of their tasks or enterprises in the exercise of their legal obligations, and in order to safeguard against fraudulent behaviour.

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How to read an amendment: added to the initial text / deleted from the initial text

JURI's Opinion: amendment 47

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller or by a third party or third parties to whom the data are communicated, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This shall not apply to processing carried out by public authorities in the performance of their tasks.

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LIBE's rapporteur: amendments 99 to 102

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This shall not apply to processing carried out by public authorities in the performance of their tasks.
  • 1. (a) If none of the legal grounds for the processing of personal data referred to in paragraph 1 apply, processing of personal data shall be lawful if and to the extent that it is necessary for the purposes of the legitimate interests pursued by the controller, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require the protection of personal data. The data controller shall in that case inform the data subject about the data processing explicitly and separately. The controller shall also publish the reasons for believing that itsinterests override the interests or fundamental rights and freedoms of the data subject. This paragraph shall not apply to processing carried out by public authorities in the performance of their tasks.
  • 1. (b) The legitimate interests of the controller as referred to in paragraph 1a override the interests or fundamental rights and freedoms of the data subject, as a rule, if:
    • (a) processing of personal data takes place as part of the exercise of the right to freedom of expression, the media and the arts, within the limits of Union or national law;
    • (b) processing of personal data is necessary for the enforcement of the legal claims of the data controller or of third parties on behalf of whom the data controller is acting in relation to a specific identified data subject, or for preventing or limiting damage by the data subject to the controller;
    • (c) the data subject has provided personal data to the data controller on the legal ground referred to in point (b) of paragraph 1, and the personal data are used for direct marketing for its own and similar products and services and are not transferred, and the data controller is clearly identified to the data subject;
    • (d) processing of personal data takes place in the context of professional business-to-business relationships and the data were collected from the data subject for that purpose;
    • (e) processing of personal data is necessary for registered non-profit associations, foundations and charities, recognised as acting in the public interest under Union or national law, for the sole purpose of collecting donations.
  • 1. (c) The interests or fundamental rights and freedoms of the data subject as referred to in paragraph 1a override the legitimate interest of the controller, as a rule, if:
    • (a) the processing causes a serious risk of damage to the data subject;
    • (b) special categories of data as referred to in paragraph 1 of article 9, location data, or biometric data are processed;
    • (c) the data subject can reasonably expect, on the basis of the context of the processing, that his or her personal data will only be processed for a specific purpose or treated confidentially, unless the data subject concerned has been informed specifically and separately about the use of his or her personal data for purposes other than the performance of the service;
    • (d) personal data are processed in the context of profiling;
    • (e) personal data is made accessible for a large number of persons or large amounts of personal data about the data subject are processed or combined with other data;
    • (f) the processing of personal data may adversely affect the data subject, in particular because it can lead to defamation or discrimination; or
    • (g) the data subject is a child.

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Eva Lichtenberger's justification against "legitimate interest"

As drafted, this provision could offer controllers a way to avoid many restrictions, since experience suggests that few data subjects will test reliance on this ground in court. Moreover, the broadness of the term creates legal uncertainty. This is also likely to lead to divergences in practice between Member States and therefore fail to achieve harmonisation. Points (a) to (e) already offer ample grounds for lawfulness, so "legitimate interest" should be removed as a ground for processing. The vagueness of the term "legitimate interests" would encourage controllers to try to cover as much processing as possible under this ground, even though it could be covered under other grounds, notably consent, as well. This in turn would make it harder for data subjects to enforce their rights – while consent can easily be revoked, objecting to processing based on "legitimate interest" requires more effort on part of the data subject. Having such an ill-defined term be one of the grounds for lawfulness could also contribute to legal uncertainty, as it is quite likely that interpretations by supervisory authorities and courts will differ between Member States.

LIBE members

Seven amendments have been submited by seventeen members of LIBE, proposing to extend the 'legitimate interest' of the controller to the one of third parties (amendments 873, 874, 878, 880, 882, 883 & 884). Those seventeen MEPs are:

  • Alexander Alvaro (ALDE - Germany)
  • Nadja Hirsch (ALDE - Germany)
  • Adina-Ioana Vălean (ALDE - Romania)
  • Jens Rohde (ALDE - Denmark)
  • Louis Michel (ALDE - Belgium)
  • Axel Voss (EPP - Germany)
  • Seán Kelly (EPP - Ireland)
  • Wim van de Camp (EPP - Netherlands)
  • Véronique Mathieu Houillon (EPP - France)
  • Monika Hohlmeier (EPP - Germany)
  • Lara Comi (EPP - Italy)
  • Hubert Pirker (EPP - Austria)
  • Renate Sommer (EPP - Germany)
  • Agustín Díaz de Mera García Consuegra (EPP - Spain)
  • Teresa Jiménez-Becerril Barrio (EPP - Spain)
  • Salvatore Iacolino (EPP - Italy)
  • Edwal Stadler (NI - Austria)

IT Giants and banks' recomandations to MEPs

  • Google (February 2012 document): 'We do note that consent is only one of several ways that the Regulation allows for the legitimate processing of personal data. Compared with the current legislative framework, however, consent has been prioritized against the ‘legitimate interests’ rule, which has heretofore controllers to process information if it does so for legitimate business interests and insofar as the processing does not affect the data subjects’ fundamental rights to privacy. Maintaining the viability of the ‘legitimate interests’ rule is important because it leaves room for organizations to process information outside explicit consent through enhanced transparency and user control.'


How to read an amendment: added to the initial text / deleted from the initial text
Amendment proposed by eBay
Article 6
  • (f) processing is necessary for the purposes of the legitimate interests pursued by a the controller or a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

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Amendment proposed by the European Banking Federation
Article 6
  • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller, or by the third party or parties to whom the data are disclosed except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

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Amendment proposed by Eurofinas
Article 6
  • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

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  • Eurocommerce (September 2012 document): 'Some businesses collect data on other businesses which is to a large extent personal data. This holds true, for example, if the information includes data on individual owners or the management of businesses. Such data collection and processing requires a legal justification and today, such justification is provided by the so-called “balance of interest clause” in Article 7 (f) of the current Directive as implemented in national laws. For example, credit information services collect data solely in the legitimate interest of third parties to whom the data are disclosed (their customers), except where such interests are overridden by the interests or fundamental rights and freedoms of the data subjects. Credit reporting agencies do not have a contractual relationship to the person on whom they collect data. Much like the directory industry, the business of credit reporting agencies is based on the interests of the recipients of the collected data, i.e. on the interest of third parties. The Proposal does not enable credit information services to rely on third party legitimate interests which are vital since it is in the benefit of their customers to receive information about the financial performance of their business partners. Without this, credit information services would only be able to rely on the legitimate interest which might not be sufficient to justify the data collection that is vital to perform their business. They would be unable to rely on other legal justifications such as consent as it would be impossible for them to collect the necessary consent declarations from all individuals involved. There is no clear justification to propose this major change to the balance of interest clause. Deleting the interests of third parties to whom the data are disclosed does not make the balance of interest clause more modern, flexible or business-friendly.'


  • ACCIS (Association of Consumer Credit Information Suppliers - December 2012 document): 'The lawfulness of processing based on the legitimate interest must be extended to legitimate interests pursued by third parties to whom the data are disclosed by a controller. To exclude this provision might compromise an essential principle of legitimacy that is very important in the market. It would be contradictory to admit this principle with reference to the controller itself but not with reference to another party (the second controller) receiving data from the former. The result would be to exclude the possibility for data suppliers to supply on a legitimate basis data to final users of such data even if the legitimate interest is recognized and justified. The limitation is not reasonable and only has the effect to limit the market without providing greater protection for data subjects. '
How to read an amendment: added to the initial text / deleted from the initial text
Amendment proposed by ACCIS
Article 6
  • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

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Pseudonymous Data

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IMCO's Opinion: amendments 61 & 75

Article 4 - Definitions
  • 3.(b) 'pseudonymous data' means any personal data that has been collected, altered or otherwise processed so that it of itself cannot be attributed to a data subject without the use of additional data which is subject to separate and distinct technical and organisational controls to ensure such non attribution, or that such attribution would require a disproportionate amount of time, expense and effort

...

Article 6 - Lawfulness of processing

  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (fe) only pseudonymous data is processed.

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ITRE's Opnion: amendments 77 & 101

Article 4 - Definitions
  • (2a) 'pseudonymous data' means any personal data that has been collected, altered or otherwise processed so that it of itself cannot be attributed to a data subject without the use of additional data which is subject to separate and distinct technical and organisational controls to ensure such non attribution;

...

Article 6 - Lawfulness of processing

  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (fa) processing is limited to pseudonymised data, where the data subject is adequately protected and the recipient of the service is given a right to object pursuant to Article 19 (3a).

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JURI's Opinion: amendment 36

Article 4 - Definitions
  • (3a) 'pseudonymous data' means any personal data that has been collected, altered or otherwise processed so that it of itself cannot be attributed to a data subject without the use of additional data which is subject to separate and distinct technical and organisational controls to ensure such non attribution;

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LIBE's rapporteur: amendments 85, 105 & 108

Article 4 - Definitions
  • 2.(a) 'pseudonym' means a unique identifier which is specific to one given context and which does not permit the direct identification of a natural person, but allows the singling out of a data subject;

...

Article 7 - Conditions for consent

  • 2.(a) If the data subject's consent is to be given in the context of the use of information society services where personal data are processed only in the form of pseudonyms, consent may be given by automated means using a technical standard with general validity in the Union in accordance with paragraph 4c, which allows the data subject to clearly express his or her wishes without collecting identification data.

...

  • 4.(c) The Commission shall be empowered to adopt, after requesting an opinion from the European Data Protection Board, delegated acts in accordance with Article 86 for the purpose of further specifying the requirements and conditions for technical standards referred to in paragraph 2a, and for declaring that a technical standard is in line with this Regulation and has general validity within the Union.

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Profiling

Provisions of the 1995 Directive

Article 15 - Automated individual decisions

  • 1. Member States shall grant the right to every person not to be subject to a decision which produces legal effects concerning him or significantly affects him and which is based solely on automated processing of data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc.
  • 2. Subject to the other Articles of this Directive, Member States shall provide that a person may be subjected to a decision of the kind referred to in paragraph 1 if that decision:
    • (a) is taken in the course of the entering into or performance of a contract, provided the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied or that there are suitable measures to safeguard his legitimate interests, such as arrangements allowing him to put his point of view; or
    • (b) is authorized by a law which also lays down measures to safeguard the data subject's legitimate interests.


Provisions of the proposed Regulation

Article 20 - Measures based on profiling

  • 1. Every natural person shall have the right not to be subject to a measure which produces legal effects concerning this natural person or significantly affects this natural person, and which is based solely on automated processing intended to evaluate certain personal aspects relating to this natural person or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour.
  • 2. Subject to the other provisions of this Regulation, a person may be subjected to a measure of the kind referred to in paragraph 1 only if the processing:
    • (a) is carried out in the course of the entering into, or performance of, a contract, where the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied or where suitable measures to safeguard the data subject's legitimate interests have been adduced, such as the right to obtain human intervention; or
    • (b) is expressly authorized by a Union or Member State law which also lays down suitable measures to safeguard the data subject's legitimate interests; or
    • (c) is based on the data subject's consent, subject to the conditions laid down in Article 7 and to suitable safeguards.


Amendments proposed by the LIBE's Rapporteur

Amendment 87

Article 4 - Definition

3.(b) 'profiling' means any form of automated processing of personal data intended to evaluate certain personal aspects relating to a natural person or to analyse or predict in particular that natural person’s performance at work, economic situation, location, health, personal preferences, reliability or behaviour;


Amendment 158

Article 20 - Measures based on Profiling

Replaces 1. with:

  • 1. The processing of personal data for the purposes of profiling, including in relation to the offering of electronic information and communication services, shall only be lawful if it:


Amendment 159

    • (a) is carried out in the course of necessary for the entering into, or performance of, a contract, where the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied, or where suitable measures to safeguard the data subject's legitimate interests have been adduced, such as the right to obtain human intervention; or


Amendment 165

  • 2. (c) Measures based on profiling which produce legal effects concerning the data subject or significantly affect the data subject shall not be based solely on automated processing.


Amendments proposed by IMCO

Amendment 60

Article 4 - Definitions

(3a) 'profiling' means any form of automated processing of personal data intended to evaluate certain personal aspects relating to a natural person or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour;


Amendments 129-130

Article 20 - Measures based on profiling automated processing

1. Every natural person A data subject shall have the right not to not be subject to a measure decision which produces legal effects concerning this natural person or significantly affects this natural person is unfair or discriminatory, and which is based solely on automated processing intended to evaluate certain personal aspects relating to this natural person or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour data subject.


Amendment 131 deletes paragraph 2 as paragraph 1 has been broadened enough.


Amendments proposed by ITRE

Amendment 182

Article 20 - Measures based on profiling

  • 1. Every natural person A data subject shall have the right not to be subject to a measure which produces legal effects concerning this natural person or significantly affects this natural person adversely affects this data subject, both offline and online which is based solely on automated processing of data intended to evaluate certain personal aspects relating to this natural person a data subject or to analyse or predict in particular the natural person's data subject's performance at work, economic situation, location, health, personal preferences, reliability or behaviour.


Amendment 183

  • 1 (a) For the purposes of advertising, market research or tailoring telemedia, user profiles may be created using pseudonymised data, provided that the person concerned does not object. The person concerned must be informed of his/her right to object. User profiles may not be combined with data about the bearer of the pseudonym.


Amendment 191

  • 2. Subject to the other provisions of this Regulation, a person may be subjected to a measure of the kind referred to in paragraph 1 only if the processing:
    • ...
    • c(a) is limited to pseudonymised data. Such pseudonymised data must not be collated with data on the bearer of the pseudonym. Art. 19 (3) [new] shall apply correspondingly.


Amendment 194

  • 3. Automated processing of personal data intended to evaluate certain personal aspects relating to a natural person shall not be based solely on the special categories of personal data referred to in Article 9.


Eva Lichtenberger's justification against profiling

Amendment 112 proposed in JURI

Profiling can entail serious risks for data subjects. It is prone to reinforcing discriminations, making decisions less transparent and carries an unavoidable risk of wrong decisions. For these reasons, it should be tightly regulated: its use should be clearly limited, and in those cases where it can be used, there should be safeguards against discrimination and data subjects should be able to receive clear and meaningful information on the logic of the profiling and its consequences. While some circles see profiling as a panacea for many problems, it should be noted that there is a significant body of research addressing its limitations. Notably, profiling tends to be useless for very rare characteristics, due to the risk of false positives. Also, profiles can be hard or impossible to verify. Profiles are based on complex and dynamic algorithms that evolve constantly and that are hard to explain to data subjects. Often, these algorithms qualify as commercial secrets and will not be easily provided to data subjects. However, when natural persons are subject to profiling, they should be entitled to information about the logic used in the measure, as well as an explanation of the final decision if human intervention has been obtained. This helps to reduce intransparency, which could undermine trust in data processing and may lead to loss or trust in especially online services. There is also a serious risk of unreliable and (in effect) discriminatory profiles being widely used, in matters of real importance to individuals and groups, which is the motivation behind several suggested changes in this Article that aim to improve the protection of data subjects against discrimination. In relation to this, the use of sensitive data in generating profiles should also be restricted.

Data Breach

Provisions of the proposed Regulation

Article 4 - Definitions

  • 9. 'personal data breach' means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;


Article 31 - Notification of a personal data breach to the supervisory authority

  • 1. In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 24 hours after having become aware of it, notify the personal data breach to the supervisory authority. The notification to the supervisory authority shall be accompanied by a reasoned justification in cases where it is not made within 24 hours.


Article 32 - Communication of a personal data breach to the data subject

  • 1. When the personal data breach is likely to adversely affect the protection of the personal data or privacy of the data subject, the controller shall, after the notification referred to in Article 31, communicate the personal data breach to the data subject without undue delay.


Amendments proposed by the LIBE's Rapporteur

Amendment 48

Article 31 - Notification of a personal data breach to the supervisory authority

  • 1. In the case of a personal data breach which has a considerable effect on the data subject, the controller shall, without undue delay and, where feasible, not later than 24 hours after having become aware of it, notify the personal data breach to the supervisory authority. The notification to the supervisory authority shall be accompanied by a reasoned justification in cases where it is not made within 24 hours.

Justification: In the event of a breach, the controller must initially concentrate on putting into practice all appropriate measures to prevent it continuing. An obligation to notify the competent supervisory authority within 24 hours together with sanctions for failing to do so might have the opposite effect. In addition, as the Article 29 Working Party stated in its opinion of 23 March 2012, notification must not concern minor breaches, as otherwise the supervisory authorities would be over-burdened.