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'One size fits all' EU data law would undermine rights, says Clarke

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"Harm can arise to the citizen where information is not being properly shared, by people he is entitled to assume are sharing it, as well as when it is shared carelessly, so our regime has both to protect the use of data, but also to enable the use of data for a proper purpose," Clarke said.

Clarke said that the European Commission's plans to revise the Data Retention Directive should be viewed "with caution". In April the Commission said it would consider strengthening regulations of the storage, access to and use of retained data to improve the protection of personal data.

Plans for a new EU Passenger Name Record (PNR) Directive should be broadened so that passenger details are recorded for all flights within the EU, Clarke said. The European Commission's plans for a new PNR Directive currently propose recording passenger's details for all flights to and from the EU.

"It makes no sense to collect PNR information on flights to and from third countries without also collecting the same information on flights between EU Member States," Clarke said.

Clarke described the UK's existing PNR arrangement with the US as "absolutely critical to improving US and EU security" and said that countries should share data collected on passengers.

"It was the use of Passenger Name Record data that enabled the identification of the terrorist facilitator at the heart of the Mumbai attacks," Clarke said.

"We will be positively negligent if we fail to take advantage of the improved security that we can give to passengers by properly pooling protected data that we both have," Clarke said.

Clarke said it was wrong to impose EU data protection laws on companies based elsewhere in the world that may handle EU citizens' personal information. "It’s wrong to view the extension of the application of European Union law on a global scale as some simple and unquestioned process," Clarke said.

"If we expect the EU regime to protect the data of EU citizens regardless of location, then it wouldn’t be unreasonable to expect Australians, Japanese and citizens from other countries working in the European Union to import their own legislative rights with them," Clarke said.

Clarke said new data protection laws should make it easier for companies to transfer customer data.

"We should consider moving from a system which restricts information based on national standards of data protection, to a system based on the standard of data protection of the particular company involved – far more relevant to modern methods of business," Clarke said.

The European Commission is expected to propose changes to the Data Protection Directive later this year.

See: Ken Clarke's speech at the British Chamber of Commerce in Brussels (10-page Word document – click through from link)

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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