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European Union

 
07/06
2013

Step forward for transparency in privacy rules

Access restricted, due to privacy

Access to documents and freedom for social media might get legal protection in new data privacy rules after all. But lawmakers still have a long way to go. Meanwhile the tone between EU-parliamentarians reaches a seldom-heard (low) level.

Privacy might be a fundamental right but it is not the only right relevant to citizens.
This perception is now acknowledged in revisions of new data protection rules put forward by the European Commission.
Member states have more or less agreed to that data protection as a general rule has to be ”reconciled” with freedom of expression and that this must be written into a specific article in the legal text.
Member states also seem to agree that data privacy rules also have to be ”reconciled” with access to official documents held by authorities (article 80 and 80a in a revised version of the proposal – see Documents).
This preliminary understanding was demonstrated during a meeting between EU justice ministers in Luxembourg June 6-7 (a video of the open discussions to be found here)

”A good basis”
These acknowledgments by ministers can be called evident and are perhaps not much to celebrate but are never the less a revision of the original proposal by the Commission. Here the freedom of expression was limited to "journalistic, cultural and literal purposes", and the right to access to documents was only mentioned in the preamble of the proposed regulation, not in a clear-cut article.
In that perspective the proposal has been amended for the better, if finely accepted as it stands now.
Some words of cautions though before friends of transparency and freedom of expression uncork the champagne:
Ministers did only agree to that the amended text described above ”was a good basis for further discussions”. This is a weaker statement than other standard phrases in the toolbox, and should first and foremost be seen as a patch on the shoulder of the outgoing Irish presidency
And as mentioned repeatedly by ministers at the Council meeting: nothing is agreed upon until everything agreement upon. And there is still a long way to go.

Is Twitter a household?
Article 80 mentioned afore far from solves actual handling of neither social media nor transparency rules.
Here are some of the juicy details to keep in sight:
* An amended exception says the regulation shall not apply to processing data in the course of ”a personal or household activity” (amended article 2.2 d). Negotiators describe this as clear step forward as regards exemptions for social media. But it is still unclear where the limits for household activities will be drawn: Will a Twitter account or an open Facebook account be accepted as household activities although accessible worldwide?
* On lawfulness of processing data article 6 mentions tasks carried out by authorities ”in the public interest”. This interest remain to be defined. In some Member States access to documents is a basic rule that might be restricted by respect for privacy as an exception. In other Member States it works the other way round, with transparency as a possible exception and confidentiality seen as in the interest of the public. With the present wording Members Sates are likely to come up with very different interpretations leading to a mockery of the idea behind a regulation; all countries should follow the same rules the same way.
Although transparency rules as such will remain untouched by the regulation it is still unclear whether the content of official documents will be kept unaltered.

Outraged and dismayed
Besides the still unsolved matters between Member States the battle in the European Parliament on other aspects of the proposed regulations gets ever more heated.
Main negotiator (”rapporteur”) for the Parliament German Green Jan Philipp Albrecht is close to outraged by what he sees as weakening of the proposal following heavy lobbyism by big business.
“Much of what we have said unanimously is now contested by lobbyist groups and by some members in here in the house who seem not to feel obliged by the resolution they voted on in the first place,” Albrecht told news site Euobserver.com.
This remark of his made UK Liberal Sarah Ludford furious and proclaiming she was unpleasantly surprised by Albrecht's interview and accused him of tabling amendments without a majority support in the responsible committee.
I am dismayed that you are stirring things up without justification”, Ludford wrote to Albrecht in an open letter not likely to create a cosy atmosphere for further deliberations.
Albrecht and the LIBE committee (Civil Liberties, Justice and Home Affairs) are responsible to propose the final positions to be adopted by the Parliament.
This process has been delayed as the vote in the committee itself has been postponed several times. At the time of writing rumours has it that the committee's vote has been postponed once again – now to the autumn.
 

Staffan Dahllöf

 
 
 
 

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