Privacy: Legal European Framework

Data Protection related European legislation and initiatives

with some accents on RFID

• European Convention for Human Rights (ECHR), 1953:
  • Art 8: right to private life
  • by Lisbon Treaty: EU is now also member of it, not only the MS (Member States).
• OECD Organization for Economic Cooperation & Development published in 1980:
  • Recommendations of the Council Concerning Guidelines Governing the Protection of Privacy and Trans-Border Flows of Personal Data
• The Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data (Convention 108), 1981
• Data Protection Directive (95/46/EC) & Regulation (EC) Nr. 45/2001 (~same as directive but for EU bodies)
• ePrivacy Directive (2002/58/EC)
  • replaces 97/66/EC
  • amended by 2009/136/EC, see below
• Data Retention Directive (2006/24/EC)
  • MS can choose mandatory retention between 6 to 24 months
  • to be implemented by 15/9/2007 (internet 15/3/2009) but still some MS fail
  • Romania constitutional court declared it unconstitutional (8/10/2009) <> privacy rights & secrecy of correspondence
• Framework decision 2008/977/JHA of the Council
  • data protection for police & judicial cooperation in criminal matters (only cross-border)
  • former third pillar
• 31st annual International conference of data protection and privacy commissioners
  • The Madrid Privacy Declaration, 3 November 2009, by Civil Society
    • Urges for a data breach legal framework
    • Recommends research on PETs (Privacy Enhancing Technique) such as anonymization
    • Calls for moratorium on development of new systems of mass surveillance such as facial recognition, whole body scanners, biometric identifiers and embedded RFID tags
  • The Madrid Resolution, 5 November 2009
    • Joint proposal for a draft of international standards on the protection of privacy with regards to the processing of personal data
    • Largely similar to main principles & rights of 95/46/EC + accountability principle
• Directive 2009/136/EC, 25 November 2009, to be transposed before May 2011
  • modifying among others the ePrivacy directive 2002/58/EC
    • urges for a data breach principle regardless of the sector, or the type, of data concerned (recital 59)
    • mentions the directive is applicable also to RFID when such devices are connected to publicly available electronic communications networks or make use of electronic communication services as a basic infrastructure (recital 56)
  • personal data breach notification principle
    • if in connection with the provision of publicly available electronic communications service)
    • covers also accidental destruction/loss/deterioration, not only unauthorized disclosure/access
    • obligation without undue delay, to DPA, and to subjects if likely to adversely affect the personal data or privacy of a subject, unless security measures were properly implemented (=encryption)
  • spam
• Treaty of Lisbon, entered into force on 1 december 2009
  • Article 16 of the TFEU (Treaty on the Functioning of the European Union)
    • Everyone has the right to the protection of personal data concerning him
    • covers also justice/policy & EU bodies, only provisions are in Art 39 of the TEU (Treaty on the European Union): concerning CFSP (Common Foreign & Security Policy)
    • was Art 286 in the former Treaty establishing the European Community
  • Charter of Fundamental Rights of the European Union becomes binding (opt-out UK & Poland)
  • Art 8 on protection of personal data
    • Everyone has the right to the protection of personal data concerning him
    • fairly, for specified purposes, on basis of consent or some legitimate basis
    • right of access, right of rectification
    • control by authority
• Stockolm Program
  • sets framework 2010-2014 for cooperation in the area of justice & home affairs
  • data protection principles are present
• New Commission
  • now 2 commissioners for the former justice, freedom and security post:
    • justice freedom & citizenship (Viviane Reding)
    • foreign affairs & security (Catherine Ashton)
  • Commission consultation on 95/46/EC
    • general principles are still valid but we need clarification on consent, transparency and introduction of data breach & accountability principles

Working bodies:

• European Data Protection Supervisor
• Commission's Justice & Home Affairs / Freedom, Security & Justice / Data Protection
• Art. 29 Data Protection Working Party