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European Union

 
22/03
2012

Supervisor alarmed by threats to access rights

Data protection supervisor protecting other rights as well

Proposed new EU-rules on data protection threaten public access to documents and the freedom of expression. Data protection supervisor Peter Hustinx calls for a ”substantive provision” to safeguard these rights. Member states reluctant to give more power to the Commission.

Privacy is a good thing. So is the right for citizens to look the authorities over their shoulders.
A difficult balance of rights, as well as the freedom of expression might be severely tilted by a new data protection regime, critics claim.
The proposed reform was launched by commissioner Viviane Reding in January. It was at the time received with enthusiasm from civil society and different NGOs. EDRi (European Digital Rights) for one welcomed the proposal.
Even the Pirate Party usually a harsh critic of EU data legislation in the European Parliament gave the initiative its preliminary blessing.
But as the content of the very substantial proposal (91 articles explained on 119 pages - see Documents) has been analysed conflicts of interest has surfaced and grown.
A major dispute is taking form.

The proposed reform will substitute a present directive – EU-law to be implemented by member states – with a regulation – binding EU-law for all once adopted.
This one-size-fits-all legislation is aimed a creating a levelled marked place for companies and an equal treatment of citizens all over the EU. Exactly the same rules shall apply Italian and Finnish companies as for Romanian and British citizens.
This outset was first received positively by commentators.

But, as pointed out by Peter Hustinx, the European Data Protection Supervisor:
Member states have widely diverging laws and practices in this area.
It is true that the EU has a right to harmonise data protections laws laid down in the Lisbon Treaty.
But this competence does not extend to harmonising national access laws, the Data Protection Supervisor underlines.
A one-size-fits-all legislation of data protection might therefor have two grave effects:
* Member states might find their national access laws being restricted by new data protection rules.
* On Access rules for the EU-institutions – currently negotiated for a change – considerations of data protection will gain a heavier weight than the right to access.

To counter these threats Peter Hustinx suggests that a ”substantive provision” is written into the proposed data regulation.
This provision should state that personal data held by public authorities may be disclosed if provided for by other laws, and if necessary to reconcile the right to data protection with the right of public access.
Peter Hustinx is also unhappy with the Commission's defence of freedom of expression.
This is shown in article 80 on processing of data and freedom of expression. Here member states are said to provide for exemptions for journalistic or artistic or literary expressions.
Good, but not good enough, according to Hustinx, who proposes to amendments:
* Drop the references to journalistic, artistic and litterary purposes by referring only to the general freedom of expression. In todays media landscape every citizen can act as a public watchdog through a blog, he argues.
* Make sure that the freedom of expression and the protection of personal data is reconciled without any of them being impaired. This can be safeguarded by sticking to the wording of the present data directive. Here it it says that the rules should be derogated if only if necessary to reconcile both rights. In the proposed regulation the wording is weaker.

Although Peter Hustinx critical remarks on access rules and freedom of expression are quite well hidden in his 85 pages long opinion (see Documents), they are well received in some member states.
The Danish presidency greets his remarks as useful for the ongoing negotiations on new access rules, wobbing.eu has learned.
In Sweden the Ministry of Justice has put out at waring to the Swedish Parliament of a potential conflict between the proposed data regulation and the country's constitution, with its historical safeguards of the freedom of the press, as well as the right to access to public documents.

”We are of course very pleased with his opinion. Peter Hustinx is a man of great integrity and he has shown a vivid interest to protect openness,” says David Törnberg, at the Constitutional section of the Ministry of Justice.
”This is very much in line with our reasoning,” says Elisabeth Wallin, a legal expert at, the Swedish
Data Inspection Board.
These statements were recently underlined by a statement ofthe Constitutional committee of the Swedish Parliament, Riksdagen.
The committee finds the idea of a regulation (one-size-fit-all legislation) in breach of the principle of subsidiarity (EU should not adopt rules on a higher level than necessary), and recommends that the Parliament sends a reasoned opinion in his matter to the EU-institutions.

Even if Sweden, and to a lesser extent Denmark, by some other member states is considered to be a transparency fundamentalist a similar criticism of the proposed data regulation has been raised around the EU.
The French Senate adopted in March 4 a reasoned opinion saying that the proposal gives too much power to the Commissions. The German Bundestag is reported to be preparing similar statements.

When civil servants from member states met for a first round of negotiations i Brussels in March 8 the critics formed a majority as for the chosen form of legislation.
According to the official Summary of discussions-document (see Document DAPIX) a ”significant number” of delegations stated they would have preferred a Directive.
Only ”a few” delegations supported the Commissions i its choice of a Regulation.
The discussion of the content stopped short after article 4, leaving 81 other articles uncommented so far.
”These are complicated matters, with effects for almost all part of society. We've only seen the start of a long and an intense battle,” a delegate commented afterwards.

 

 

 

Staffan Dahllöf

 
 
 
 

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