Data protection issues

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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.

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

Excplicit consent

1995 Directive's provisions

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's provisions

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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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's 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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Pseudonymous Data

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

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

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

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

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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Legitimate Interest

1995 Directive's provisions

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's provisions

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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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.

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.