European Commission Postpones Revision of the General Data Protection Directive

Posted on August 3, 2010 by Hunton & Williams LLP

In a statement released on August 2, 2010, the French Data Protection Authority (the “CNIL”) announced that the European Commission has adopted a new time frame for the revision of the EU Data Protection Directive 95/46/EC (the “Directive”).  Following a public consultation on the EU Data Protection Framework late last year, Commissioner Viviane Reding, who is in charge of Justice, Fundamental Rights and Citizenship, had announced that a proposal for the revision of the Directive would be presented in November 2010.  However, several European data protection authorities urged the European Commission not to rush through the revisions, and requested additional time in order to address the impact of this revision and challenges to personal data protection.  Accordingly, the European Commission has decided to postpone the release of a proposal, noting that it will instead issue a statement in November 2010, and will present proposed revisions in the latter half of 2011.

More information is available (in French) on the CNIL’s website.

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Article 29 Working Party Calls on FTC to Investigate Online Retention and Anonymization Policies

Posted on June 1, 2010 by Hunton & Williams LLP

In a letter to the U.S. Federal Trade Commission dated May 26, 2010, the Article 29 Working Party expressed concerns regarding the retention and anonymization policies of Google, Yahoo! and Microsoft.  Specifically, the Working Party requested that the FTC examine the compatibility of the three search engine providers’ actions with provisions of Section 5 of the FTC Act which prohibits unfair or deceptive trade practices.

The Working Party’s request references individual letters sent to Google, Yahoo! and Microsoft, also dated May 26, 2010, in which the Working Party stated that Yahoo! and Microsoft had not provided sufficient information about their anonymization practices to allow the Working Party to assess the quality of their policies, and Google’s existing policies were insufficient to guarantee adequate anonymization.  As a result, the Working Party could not conclude that the three companies’ retention and anonymization policies complied with the EU Data Protection Directive.

These concerns were first raised in March 2008, when the Working Party issued a detailed Opinion about search engines (Opinion 1/2008 - WP 148), which attempted to clarify and harmonize specific obligations for search engine providers with respect to the EU Data Protection Directive.  The Opinion also highlighted the Working Party’s concerns over the sensitivity of personal data related to search queries and the treatment of such personal data by search engine operators.  It urged companies to review their retention policies and bring them in line with the recommended maximum period of six months.  Following various consultations with the service providers in February 2009, the companies pledged their commitment to reduce retention periods (with limited exceptions) and announced steps to improve their anonymization procedures.

The Working Party urged all three service providers to review their anonymization claims and make the process verifiable.  To this end, the Working Party strongly suggested the use of audit procedures involving external and independent auditors.

In addition to the letter to the FTC, the Working Party also sent a copy of the service providers’ letters to Commissioner Viviane Reding in an effort to contribute in a meaningful way to the development and better enforcement of adequate, transatlantic data protection principles.
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New EU Fundamental Rights Commissioner Reveals Privacy and Data Protection Priorities in the European Union

Posted on January 14, 2010 by Hunton & Williams LLP

On January 12, 2010, Ms. Viviane Reding, Commissioner-designate for Justice, Fundamental Rights and Citizenship, was questioned during a public hearing before the European Parliament.  During this hearing, Ms. Reding revealed her priorities in the field of privacy and data protection.  “Fundamental rights and data protection will be top of the line” said Ms. Reding, who explained that she intends to incorporate the EU’s data protection rules into a modern and comprehensive legal instrument.

Ms. Reding promised that all proposed EU legislation will comply with the European Charter of Fundamental Rights (which entered into force on December 1, 2009), including the right to privacy.  Ms. Reding also announced that she would work closely with the Council of Europe on fundamental rights issues and would soon be presenting a proposal for the EU’s accession to the European Convention for the Protection of Human Rights.

When asked about the protection of personal data in international agreements (with regard to issues such as banking data, air passenger name records and body scanners), Ms. Reding replied that “our need for security cannot justify any violation of privacy” and that she would not let anyone dictate “rules that go against fundamental rights on anti-terrorism grounds.”

View the EU press release. 

View Ms. Viviane Reding’s answers to the European Parliament’s questionnaire.
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Viviane Reding Appointed New EU Commissioner for Fundamental Rights

Posted on December 1, 2009 by Hunton & Williams LLP

Commissioner Viviane Reding has been chosen as Commissioner for Justice, Fundamental Rights, and Citizenship in the new European Commission that is set to take office in early 2010 (assuming approval by the European Parliament).  Ms. Reding's responsibilities will thus include data protection, including the Commission's ongoing review of the EU framework for data protection.  She is currently EU Commissioner for Information Society & Media, where she oversaw review of the e-Privacy Directive and the EU legislative framework for telecommunications.  Commission President Barroso appointed a separate commissioner for fundamental rights as part of a commitment he made to the European Parliament to give greater profile to such issues.  Commissioner Reding will share a Directorate-General with Commissioner Cecilia Malmström, who is in charge of Home Affairs (i.e., law enforcement).  It remains to be seen how appointing a separate commissioner in charge of fundamental rights (rather than having a single commissioner in charge of both law enforcement and fundamental rights, as is the case in the current DG Justice, Liberty and Security) will affect the data protection portfolio.

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