EU's Article 29 Working Party Provides Substantial Guidance
Quentin Archer, a partner in the London Office of Hogan Lovells, provides this report
The Article 29 Working Party (set up under Article 29 of the European Data Protection Directive) has been very productive over the last month as the summer holidays approach, issuing four opinions, one report and one set of FAQs. In recent years we have come to expect these spikes in publications at the middle and end of each year, which are perhaps more a product of the Working Party's internal approvals process than any indication of unusual activity.
Behavioral Advertising
In June, the Working Party issued Opinion 2/2010 (WP171) on online behavioral advertising. The Working Party notes that both the E-Privacy Directive and the Data Protection Directive are relevant to online behavioral advertising, and goes into some detail on the requirements of the E-Privacy Directive (amended in 2009) that cookies should be employed for this purpose only with the informed consent of users. It recommends that advertising network providers should limit in time the scope of consents given by users, offer the possibility for consents to be revoked easily and create visible tools to be displayed where monitoring takes place. In relation to general data protection obligations, it emphasizes the importance of transparency regarding processing of personal data and points out that the responsibility for ensuring transparency will be shared between different service providers in relation to behavioral advertising. However, the Working Party does not prescribe how legal obligations should be fulfilled from a technological point of view, and instead invites industry to undertake a dialog with it to explore how the legal framework set out in the Opinion can be satisfied.
For a more detailed discussion of the provisions of this opinion, see our analysis here.
Controller-Processor Standard Clauses
On 12th July 2010, the Working Party issued FAQs (WP176) designed to address issues raised by the entry into force of the Commission Decision of 5th February 2010 on the new controller-processor standard clauses. Several of the FAQs address the situation where personal data is transferred from an EEA-based controller to an EEA-based processor and then to a non-EEA-based sub-processor, which is not specifically contemplated by the new clauses. As the new clauses cannot be used to effect this, the Working Party suggests different solutions to address the problem. The remainder of the FAQs answer a variety of questions which might arise where the processor to whom the data are transferred is located outside the EEA, such as whether a data exporter's consent to sub-processing must be specific or can be general, and whether sub-processing agreements can be made in respect of more than one data exporter.
Data Retention
On 13th July, the Article 29 Working Party issued Report 01/2010 (WP172) on its second joint enforcement action, which concerned the implementation of the Data Retention Directive (Directive 2006/24/EC). The Data Retention Directive derogates from the provisions of the E-Privacy Directive by requiring Member States to ensure that certain categories of communications data are retained for periods of not less than six months and not more than two years. This is in contrast to the general principle in Article 6 of the E-Privacy Directive, which requires such data to be erased or anonymised when it is no longer needed for the purposes of the transmission of a communication.
The data protection authorities of 25 EEA member states contributed to the joint enforcement action, circulating questionnaires and conducting onsite investigations in certain cases. It was discovered that there were significant differences between Member States regarding retention of internet services traffic data, with variations in retention periods. A more uniform picture emerged in relation to the retention of telephone traffic data. The Working Party established that there was inconsistent implementation at domestic level as a result of differing views over the scope of the Directive, notably whether it was meant to be a derogation from the general obligation to erase traffic data upon conclusion of an electronic communication, or whether instead it affected only data which providers were already allowed to store for subscriber billing and interconnection payments purposes in accordance with Article 6(2) of the E-Privacy Directive. The Working Party recalled its previous opinions on the Data Retention Directive and (awaiting the decision of the Commission as to whether or not to amend or repeal the Directive) it laid down specific recommendations to ensure increased harmonization, more secure data transmission and standardized handover procedures.
For a more detailed discussion of the provisions of this opinion, see our analysis here.
Accountability
Also on 13th July, the Working Party issued Opinion 3/2010 on the principle of accountability (WP173). The Opinion proposes that a new principle on accountability should be introduced (as part of amendments to the Data Protection Directive) which would require data controllers to put in place appropriate and effective measures to ensure that the principles and obligations set out in the Directive are complied with, and to demonstrate this to supervisory authorities upon request. It is hoped that this will provide a practical means of ensuring the observance of data protection rules as well as helping data protection authorities in their supervision and enforcement tasks.
FEDMA
The third opinion, also adopted on 13th July was Opinion 4/2010 on the European Code of Conduct of FEDMA for the Use of Personal Data in Direct Marketing (WP174). The approval of draft community codes of conduct is anticipated in Article 27(3) of the Data Protection Directive, and indeed the European Code of Conduct of FEDMA (the Federation of European Direct and Interactive Marketing) had been the subject of a previous favorable opinion of the Working Party in June 2003. The subject matter of the present Opinion was an annex to the Code dealing with the specific problems created by the on-line world, with special reference to provisions designed to protect children. The annex (which is exhibited to the Opinion) was approved by the Working Party and FEDMA was encouraged to promote it within the direct marketing sector.
RFID
The final July 13th opinion is the Opinion 5/2010 on the Industry Proposal for a Privacy and Data Protection Impact Assessment Framework for RFID Applications. The opinion comments on an industry framework for RFID privacy impact assessments (PIA). Although the Working Party agreed with the broad framework of the industry report, it indicated three concerns: (1) no section of the PIA requires the RFID operator to identify risks associated with the RFID application; (2) the proposed framework fails to encourage the RFID operator to identify risks to individuals related to carrying RFID tags in everyday life; and (3) lack of clarity regarding RFID tag deactivation in the retail sector. As a result of these concerns, the Working Party encouraged stated it could not endorse the proposed document.
