The European Data Protection Supervisor (“EDPS”) issued an Opinion on “coherent enforcement of fundamental rights in the age of big data”. This is an update to the EDPS’ Preliminary Opinion in 2014 on “Privacy and competitiveness in the age of big data”. The Preliminary Opinion observed a tendency for EU rules of data protection, consumer protection, and antitrust enforcement and merger control to be applied in “silos”. The new Opinion develops the notion and suggests that the Digital Single Market Strategy provides an opportunity for a “coherent approach”, and makes recommendations to support this.
New data-driven technologies and services are important for economic growth, which have become reliant on the “covert tracking” of individuals who are likely unaware of the tracking. There is the danger that larger companies may be able to block smaller companies from entering the market. This might also have the knock-on effect of creating an imbalance between the providers and consumers which may ultimately impact on choice, innovation and the protection of their personal data.
When considering the rights and freedoms set out in the Charter of Fundamental Rights of the EU – including the right to privacy, the protection of personal data and freedom of expression – it has been recognised that these rights are “threatened by normative behaviour and standards that now prevail in cyberspace.” So the latest Opinion encourages regulators to engage in dialogue and share lessons learned to work collaboratively and uphold the interests of individuals and society in the ever-growing digital environment.
The three key recommendations
1. “Better reflect the interests of the individual in big data mergers”
The EDPS recognised that, historically, EU merger control rules have focused on companies which meet certain turnover thresholds. The EDPS supports greater scrutiny of proposed acquisitions of less established digital companies, that may have collected large quantities of personal data which have not yet been monetised. This measure highlights the importance of personal data in digital sector mergers; so much so, it has been recommended that the rules should be interpreted, and at some point amended, to protect the rights to privacy, data protection and freedom of expression.
2. “A digital enforcement clearing house”
The Digital Clearing House (“DCH”) would provide a platform for enforcement of EU rights in the digital sector, allowing regulators to come together and discuss matters of common interest, such as:
- The most appropriate legal regime for pursuing particular cases or complaints
- Regulatory solutions for certain markets where personal data is a key input
- Assessing the impact on an individual’s rights and the possibility of sanctions and available remedies
- Identifying synergies and fostering cooperation between enforcement bodies and their mutual understanding
3. “An EU values-based common area on the web”
The EDPS proposes an online “common area” where individuals can interact without being tracked, and which respects their privacy rights. The benefits would be that it is free of charge and provides appropriate safeguards.
In the rise of Big Data technologies, this Opinion is a timely reminder that these opportunities require protections to be put in place so that an individual’s fundamental rights remain significant in this new digital age.
Will we see any change? In fact, we already have. On 29 September 2016, the EDPS and the European consumer organisation, the BEUC, hosted a conference to discuss the future of freedom of expression and privacy online and, specifically, the Opinion findings. So this shows that regulators and experts are already coming together to discuss these changes.
It is also promising to see that the recommendations are taking effect, with the EDPS announcing the launch of a DCH; input on where improvements could be made to the DCH has also been encouraged.