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The proposed European Union Data
Protection Regulation: Status and highlights by Matthew Byford, Associate, Squire Sanders (U.K.) LLP
On 12 March 2014, the European Parliament adopted a draft Data Protection Regulation1
to replace the 1995 Directive. The focus of the Draft Regulation
is data privacy, specifically the protection of individuals with regard to the processing of their personal data. The draft must now be considered by the EU Council of Ministers, where there is considerable resistance from several Member States.
IN CONTRAST TO THE EXISTING DIRECTIVE, which sets a minimum bar but allows Member States considerable implementation flexibility at national level, the Regulation would be directly enforceable in each Member State. One benefit would therefore be a harmonised approach to data protection regulation across Europe. If adopted in its current form, however, there are concerns that the Regulation would result in a consistently business-unfriendly regime across Europe. Highlights are provided in the Q&A that follows.
Privacy by Design/ Default
What does the Draft Regulation say? The Draft Regulation requires both data controllers and data processors to “implement appropriate and
proportionate technical and organisational
measures and procedures” to protect the rights of the data subjects, having regard to the “entire lifecycle management of personal data from
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www.dcsuk.info I May 2014
collection to processing to deletion”. Privacy by default means that privacy settings must be set at a level which ensures that personal data will only be processed for the purpose specified, whilst allowing for data subjects to “opt in” to more extensive processing.
What are the implications for business? Businesses will be required to develop privacy by design/default tools and procedures that take into account relevant regulatory requirements and evolving industry standards. For the processing of
data considered to be “high risk”, businesses should consider embedding default settings, checklists, stop points, sign-offs, certifications, etc.
More generally, businesses should identify areas where data minimisation and purpose limitation strategies can be implemented. Default settings should be set at a level that ensures the lowest level of data processing and the highest level of data protection, but allows for consumers to actively consent to increased levels of data processing.
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