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'Part-anonymise' it and you're good to go, says unelected digital czar

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Businesses should be allowed to process part-anonymised, or pseudonymised, data without the consent of individuals whose data it is in certain circumstances, a senior EU official has said.

Neelie Kroes, the EU Commissioner responsible for the Digital Agenda, said that companies should be able to process pseudonymised data without consent where they have a 'legitimate interest' in doing so. In a speech at a data protection congress held by the International Association of Privacy Professionals Europe in Brussels, Kroes said she supported proposed reforms to the EU's existing data protection framework that were backed by a committee of MEPs in October.

Under those plans, businesses would have the right to use data that they collect from individuals more freely, and in accordance with the data protection regime, if they pseudonymised the information. If data was fully anonymised then data protection laws would not apply to the information at all, but Kroes said that some of the benefits that can be gleaned from making use of personal information can be lost if data is anonymised. She said she backed plans that would permit the use of pseudonymised data without consent if certain criteria were met.

"Sometimes, full anonymisation means losing important information, so you can no longer make the links between data," Kroes said. "That could make the difference between progress or paralysis. But using pseudonyms can let you to analyse large amounts of data: to spot, for example, that people with genetic pattern X also respond well to therapy Y. So it is understandable why the European Parliament has proposed a more flexible data protection regime for this type of data."

"Companies would be able to process the data on grounds of legitimate interest, rather than consent. That could make all the positive difference to big data: without endangering privacy. Of course, in those cases, companies still [need] to minimise privacy risks. Their internal processes and risk assessments must show how they comply with the guiding principles of data protection law. And – if something does go wrong - the company remains accountable," she said.

Under the proposals backed by the European Parliament's Civil Liberties, Justice and Home Affairs (LIBE) Committee, businesses would be allowed to process pseudonymised data without individuals' consent where doing so is in their "legitimate interests" and those interests "meet the reasonable expectations" of individuals whose data it is based on their relationship with the company. This is unless the interests or fundamental rights or freedoms of the individual are "overriding".

There would be a presumption, under the draft new regime, that processing pseudonymised data would meet the 'reasonable expectations' of businesses' customers, although individuals would have a right to object to such activity. Businesses would have to "explicitly inform" the individuals of the legitimate interests they intend to pursue and of their right to object.

Under the LIBE-backed plans, businesses would generally need individuals' consent to process personal data for the purpose of profiling where the profiling "significantly affects" those individuals' interests, rights or freedoms. However, where profiling has been based solely on the processing of pseudonymised data it would be presumed that individuals' interests, rights or freedoms are not significantly affected.

Copyright © 2013, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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