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New data rules will collide with fundamental rights, Commission admits

Commissiner Reding tells member states to safeguard rights

Suggested new EU rules for data protection might not only ban blogs, Facebook updates, and tweets. Authorities will have to redact official archives by deleting names in documents. Member states are told to find their own way to secure fundamental rights.


The EU-Commission explicitly asks member states to make their own loopholes in the proposed data legislation, now being negotiated. If not, there will be no safeguards for fundamental rights.
Commissioner Vivian Reding, illustrates this paradox in law making in an answer to a question raised in the European Parliament after a previous posting on this website.
As shown the proposed data protection rules will apply to all kind of publications accessible to an ”unlimited number of individuals”, for example homepages, blogs and open Facebook updates.
Only purely private networks will be unaffected. This is known as the “household exemption”.
Member of the European Parliament Anna Hedh (Socialists & Democrats) thus asked if the Commission really intends to limit freedom of expression, referring to a decision by the EU-court in 2003 (the Lindqvist case described here).
The answer in short is yes.


Member states obliged
Commissioner Viviane Reding, responsible for the data protection package, explains:
”Accordingly the interpretation of the current 'household' exemption in the Lindqvist case applies, so that where personal data are accessible to an unlimited number of individuals, the processing falls under the proposed Regulation.”
Immediately after this sentence Reding continues:
”However, for reconciling the right to the protection of personal data with the rules governing freedom of expression, Member States are obliged under the proposed Regulation to provide exemptions or derogations from general data protection rules.”
In other words: First EU will decide to regulate free speech in a digital form, then member will have to make sure this does not harm the freedom of expression – for Redings answers in full see Documents.


No harmonized rights
The logic behind such a seemingly reversed legislation is that the EU has competence to regulate data protection, but not to harmonize fundamental rights. Those rights have very different protection in the member states due to different historical and cultural backgrounds.
”I guess we should be satisfied that fundamental rights are not harmonized according to a common denominator, ” reflects David Törngren a legal adviser at the Swedish Ministry of Justice.
But the threat to fundamental rights such as freedom of expression and access to public information is not only a concern of some member countries, or individual members of the Parliament.
The Irish EU-presidency had put the issue of ”household exception” on the agenda for an informal meeting between ministers of justice in Dublin 17-18 January.
According to a spokesperson of the presidency there was broad support for ”a practical and reasonable approach”. What this means remain to be seen.


Freedom for some, or for all
In the regulation the Commission suggests that new data protection rules should not apply for ”journalistic, artistic or literary purposes.”
This has been criticised by, amongst others the EU data protection supervisor Pete Hustinx and the EU Agency for Fundamental Rights. The critics claim that freedom of expression must not be limited to certain categories like journalists (see Documents).
The Parliament’s main rapporteur on the proposal Jan Philipp Albrecht (The Greens) has taken the same approach in a very extensive draft report – 215 pages containing all in all 350 amendments (see Documents).
But even if freedom of expression is to be granted not only to journalists, artists and authors, it still remains for member states to make sure that this right is respected.
The right of access to information will be put under similar constraints.


Mounting conflict
In the proposal there is no justification for keeping, and processing official records as a part of a transparency policy.
On the contrary the rules will force authorities to make sure that personal data like names are redacted in archives otherwise held ”for the purposes of historical, statistical or scientific research”.
To redact names, and to reject access on the presumption of protection personal data, is in line with the infamous Bavarian Lager case. Here the European Court of Justice gave green light to the Commission’s refusal of revealing the names of participants in a lobbying meeting.
In the proposed data regulation access to document is acknowledged as a legitimate cause in the preamble ”to be taken account for” (Recital 18), but this right is not granted in a legally binding article.
Rapporteur Albrecht does suggest a somewhat stronger wording on the right to access – but still only in the preamble.


One out of 28, but
In Sweden the right to access to official documents has been a part of the constitution since 1766. Swedish officials therefore fear a mounting constitutional conflict.
This can be seen as a dilemma relevant for only one out of 27, soon to be 28, countries.
But as access rules for documents held by EU-institutions also refer to protection of personal data, the proposed rules will most likely have EU-wide effects.
Negotiations on new access rules came to a halt at the end of the Danish presidency last spring. The Irish presidency has now indicated that it considers putting the issue back on the agenda.
If nothing else parallel negotiations on these two packages might make the conflict between data protection rules and access to information more visible than has been the case so far.


Staffan Dahllöf


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