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EU Data Protection compromise ‘surprising’ – and counterproductive?

Posted on: Friday 7th of June 2013

The Council of the European Union has released a draft compromise text for proposed new Data Protection regulations which, in its own admission, are ‘surprising’.

The compromise text “tempers many of the European Commission’s original proposals that had been the subject of some of the most vociferous debate”.

In doing so however, the new proposals seem certain to make the debate even more vociferous.

One of the Council’s proposed compromises softens the requirement for individuals giving consent to data collection and use from ‘explicit’ to ‘unambiguous’. It also softens the requirement of ‘proof’ of consent to being able ‘demonstrate’ that consent was obtained.

Perhaps more importantly, the new draft further softens the proposals by “requiring that the requests for consent for separate matters be presented in a distinguishable manner, rather than requiring that the consents themselves be distinguishable”.

One interpretation of this is that it could undermine the meaning of the entire consent process. Unscrupulous organisations would be able to present individuals with a long list of requests for consent, some of which individuals want to consent to and some of which they do not wish to consent to. But because the consents themselves need not be ‘distinguishable’ they can be wrapped up in one blanket ‘yes’ or ‘no’, leaving the individual with no choice but to accept, or reject, the complete package. The effect could be to enshrine the current approach of blanket ‘tick box’ consents – already the subject of so much controversy – even more securely and explicitly into European law.

A surprising exemption

The proposals also extend exemptions to the regulations by broadening the definition of activities which constitute ‘a legitimate interest for data processing’. The Commission is ‘explicitly’ extending these exemptions “to include: (1) fraud prevention; (2) anonymizing or pseudonymizing personal data; and (3) direct marketing purposes.”.

Explanations are provided for the first two exemptions. When it comes to direct marketing however, the press release provides no explanation. Instead it simply states this “third extension seems likely to cause the most surprise, and may not be unanimously welcomed, although it could be said to reflect current practice in more permissive jurisdictions such as the UK.”

At this stage, it looks like one of the biggest lobbying exercises in history is coming out on top. But will this end, or amplify, ‘the vociferous debate’?

Almost certainly the latter.