This post was written by Cynthia O’Donoghue

A leaked document appears to show proposed changes to the new draft data protection Regulation made by DAPIX on 22 June 2012 confirming that the document is under review by a number of Working Parties of the EU Council. The document includes the full Regulation with changes marked. The introduction to the document states that the proposed changes relate to Articles 1-10, 80(a) and 83. Furthermore, the introduction notes that Belgium, the Czech Republic, Germany and Slovenia have commented that they would prefer a Directive over a Regulation and that almost all delegations think that the proposed Regulation contains too many cases of delegated acts.

Changes to the draft Regulation suggested by European member states through DAPIX included:

  • Deletion of Article 1(3) on the Presidency as the subsection did not make sense in the context of a directly applicable Regulation.
  • Definition of ‘personal data’ in Article 4 amended as some countries felt the definition was incompatible with the digitalised age. Some countries felt greater clarity was required with ‘personal data’ being distinguished from ‘information’. Comments also highlight issues with the definition of ‘biometric data’, the deletion of the definition of ‘child’ by the Presidency and the addition of definitions for ‘third party’ and ‘Information Society Service’.
  • The extension of ‘processing’ to include historical, statistical and scientific under Article 5.
  • The inclusion of additional lawful processing purposes added to cover certain categories of sensitive data and processing necessary under Articles 80 to 85 (journalism, scientific or artistic purposes, vital interests of the data subject and historical, statistical and scientific processing).
  • The inclusion of biometric data within the concept of sensitive personal data.
  • Redrafting of Article 10 which relates to processing that does not allow identification.
  • Addition of Article 80a that says “Member States may determine the conditions for the processing of a national identification number or any other identifier of general application”.
  • Drafting added to the safeguards in Article 83 which widens the reasons in relation to processing for historical, statistical and scientific purposes.

The draft Regulation is currently under discussion with a number of parties (including the Article 29 Working Party) within the EU and all amendments made are only DAPIX suggestions and are still subject to further review. Time will tell whether any of the suggestions in this document will be included in the next draft of the Regulation.