On October 5, 2012, the Article 29 Data Protection Working Party adopted opinion 08/2012 critiquing certain aspects of the proposed European data protection Regulation.
Broadening of Concept of Personal Data The Working Party wants to broaden the notion of personal data to include not only information that permits a person to be identified, but also information that permits a person to be "singled out and treated differently." This addition is intended to cover Internet identifiers that permit certain individuals to be targeted, even though the identifier may never be traceable to the name of a given individual. In that situation, an individual will be "singled out and treated differently," but may never be "identified."
The Working Party also wants to revise recital 24 of the proposed Regulation to state that "identification numbers, location data, online identifiers or other specific factors as such should as a rule be considered personal data". Currently recital 24 of the draft states that these identifiers "need not necessarily be considered as personal data in all circumstances," thereby giving more flexibility for companies to take the position that IP addresses and other identifiers may not always be considered personal data. To the extent this broad definition of personal data leads to disproportionate compliance burdens for companies, the Working Party suggests treating this issue in the operational sections of the Regulation, rather than inthe definitions.
Strict Conditions on Granting Consent The Working Party also underlined the need to maintain strict conditions around the granting of consent, reiterating that consent must always be explicit. The Working Party no doubt wants to counter lobbying pressure by businesses who feel the draft Regulation’s conditions on consent are currently too stringent.
Delegated Acts Lastly, the Working Party criticized the Commission’s extensive use of delegated acts in the text of the proposed Regulation. The Working Party examined each proposed delegated act and determined that many were unnecessary, and that guidance from the future European Data Protection Board would be just as effective in most cases.
Timetable The Working Party indicated that the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) would be submitting its opinion on the draft Regulation before the end of the year, as would other European Parliament committees working on the text.