August 23, 2010

I am only too well aware that my blog posts and editorials often focus on the negative. And very often the negative that I focus on originates in Brussels or Luxembourg. So it is a particular pleasure to be impressed by recent developments and a special surprise (to me at least) that the developments which I wish to praise and draw to your attention emanate from EU institutions. 

Article 29 Working Party

The Article 29 working Party seems to have gone into overdrive over the last couple of months. We have seen three opinions published (on online behavioural advertising, the principle of accountability and RFID applications), plus a report on data retention compliance and enforcement and a set of answers to FAQs on standard clauses for personal data transfer contracts. The Dutch chair of the Working Party has either found himself under intense pressure to deliver or has found a way to create speedy consensus and thus greatly increase productivity – I am not sure which. 

But the effect is increased clarity in areas of data protection doubt. I think the real innovation is in the publication of FAQs. Obviously the views of the Article 29 Working Party are not definitive, but they do provide a very prominent signpost and, even if a court rules that that signpost has sent you in the wrong direction, you are in little danger of being in serious trouble by following it. I would love to see the Article 29 Working Party initiative followed by any other body with the opportunity to give useful guidance. This includes judges who too often dodge the big issues on a narrow factual analysis when they know that practitioners are keen to have a steer and that costs might be saved if the big question, one which it is quite clear from the judgment that they have addressed, were answered. I am thinking especially of the Court of Justice in the Bavarian Lager case but our domestic courts are by no means immune from this habit. 

E-commerce Consultation

We are all entitled to be pretty cynical about consultation exercises. We have seen too many that purport to ask for views but which show quite clearly that a stance has already been taken on the big issues. And we have seen quite a few where a widely endorsed view has been overturned by an overwhelming minority. 

I am impressed, however, by the latest consultation from the EU Commission on the future of e-commerce and the implementation of the e-commerce Directive. The questions need to be read carefully if you are to gain an insight into current EU thinking but the debates that these questions are aiming to engender are genuinely worthwhile.  

The tone of disappointment with the level of penetration of e-commerce that is acknowledged in the introduction to the questionnaire is, in my view, mistaken. The rest of the questionnaire acts as a useful summary of issues that matter for e-commerce practitioners (even if the focus on pharmacists seems strange). I have some minor gripes. Let me give one example – the EU seems to have overlooked the very basic fact that for the consumer e-commerce is never going to be an EU-only phenomenon. So, when the EU reflects a widely held consumer view that ‘the Internet can entail risks and may even, in some contexts, resemble a place beyond the law’ it is solely focused on the issue of on-line dispute resolution mechanisms in the EU and does not seem to acknowledge that, whatever it achieves, the resolution of a consumer’s dispute with a seller based in China is not going to be easier.  

My main message though is that you really need to go and read the questions and the text that surrounds them – especially if you are Google, a bank, a pharmacy or have a connection with online broadcasting or high-profile sports events. And surely the EU Commission deserves some praise for publishing a must-read questionnaire!