ICO’s Initial Analysis of EU Data Protection Reform Proposals

March 1, 2012

The ICO’s analysis of the Commission’s proposals is a 35-page document which ‘reflects the ICO’s initial analysis of the European Commission’s legislative proposals for the protection of individuals with regard to the processing of personal data. …This paper is not a comprehensive analysis of each element of the proposed Regulation or Directive, nor is it necessarily the ICO’s last word on the subject. Our intention at this point is to provide an overview of the most significant parts of the proposed instruments and in particular to draw attention to those aspects which we believe still need further consideration.’ 

The paper is required reading for data protection professionals and can downloaded from the panel opposite. 

Commenting on the analysis, Eduardo Ustaran, partner and Head of the European data protection team at law firm Field Fisher Waterhouse, made the following points:

* It’s interesting that the ICO criticises the two-year implementation period. It shows that the regulatory community are keen to start operating under the new regime as soon as possible.

* It is certainly realistic, although clearly controversial, for the ICO to say that complete harmonisation is not possible or desirable. However, that stance highlights that getting all EU regulators to operate as one body will be challenging.

* The ICO makes a compelling case for flexibility and equivalent privacy standards across Europe as opposed to identical and very prescriptive rules.

* The ICO is also candid about the limitations to enforce the law against non-EU organisations despite the wide extra-territorial scope of the proposal.

* Where the ICO may not be entirely realistic is in their support for a black and white approach to ‘consent’, as the truth is that consent may indeed be implied from people’s actions and that is often the case.

* The ICO seems to appreciate the tension between the proposed ‘right to be forgotten’ and freedom of expression, which proves once again how high the stakes are on this issue. This is going to remain as a key area for debate during the legislative process.

* Not surprisingly, the ICO has strong opinions about the proposed regime for international data transfers which is seen as too regulator-driven. The ICO’s thinking is probably too radical to be taken on board but hopefully it will have some influence.