Original URL: http://www.theregister.co.uk/2011/12/09/draft_data_protection_leak_unlikely_to_be_enacted_in_current_form/

Leaked EU data protection draft SHALL. NOT. PASS.

Doubtful Commission's proposals will be enacted in this form

By Amberhawk Training

Posted in Law, 9th December 2011 09:42 GMT

Analysis The first impression of this leaked text is that this version of the Regulation is more prescriptive than Directive 95/46/EC and will get up most data controllers and governmental noses. I think the text makes far too many fundamental changes than can be reasonably done via a "Regulation" (which has three times as many Articles as the Directive it replaces). And this conclusion is from someone who thinks changes to the UK data protection regime are badly needed*.

I think this text is open to the argument that the Regulation is so long that it should be discussed as a new Directive which can be debated by member states and national parliaments; this ensures the issue then goes into the long grass.

Another risk is that many governments will respond to data controller complaints and argue that in the current economic circumstances that this Regulation should be shelved. I can see the Greeks, Spanish, Portuguese, Irish, Italians and UK opposing the text for this reason. Indeed, I wonder whether this is the intent of the leak, but that is perhaps too Machiavellian.

I cannot see the UK accepting this – and to be honest, I doubt whether it will make progress in its current form!! However, this is a summary of its content for what it's worth. Remember it is a leaked version and I would not depend on it; wait until you see the real McCoy (on Data Protection Day, 25 January).

In summary:

There is to be a stronger data protection authority, more trans-European co-ordination on data protection issues (a European Data Protection Board), higher penalties and more powers to the Commission – to get consistency and an obligation on national governments to give their supervisory bodies sufficient monies to operate effectively.

An that is why I think it won’t see the light of day in this form. I am not doing a further analysis of it; I await the final text. I suggest you do likewise.

References *

Draft leaked version of a Regulation is on Statewatch here (PDF).

See also "European Commission explains why UK’s Data Protection Act is deficient".

This story originally appeared at HAWKTALK, the blog of Amberhawk Training Ltd.