The nature of the digital economy is as such that it will force the creation of multi-competent supervisory authorities sooner rather than later. What if the European Data Protection Board would become in the next 10 to 15 years an EU Digital Regulator, looking at matters concerning data protection, consumer protection and competition law, having “personal data” as common thread? This is the vision Giovanni Buttarelli, the European Data Protection Supervisor, laid out last week in a conversation we had at the IAPP Data Protection Congress in Brussels.
To begin with, I reminded the Supervisor that at the very beginning of his mandate, in early 2015, he published the 5-year strategy of the EDPS. At that time the GDPR wasn’t adopted yet and the Internet of Things was taking off. Big Data had been a big thing for a while and questions about the feasibility and effectiveness of a legal regime that is centered around each data item that can be traced back to an individual were popping up. The Supervisor wrote in his Strategy that the benefits brought by new technologies should not happen at the expense of the fundamental rights of individuals and their dignity in the digital society.
“Big data will need equally big data protection“, he wrote then, suggesting thus that the answer to Big Data is not less data protection, but enhanced data protection.
I asked the Supervisor if he thinks that the GDPR is the “big data protection” he was expecting or whether we need something more than what the GDPR provides for. And the answer was that “the GDPR is only one piece of the puzzle”. Another piece of the puzzle will be the ePrivacy reform, and another one will be the reform of the regulation that provides data protection rules for the EU institutions and that creates the legal basis for the functioning of the EDPS. I also understood from our exchange that a big part of the puzzle will be effective enforcement of these rules.
The curious fate of the European Data Protection Board
One centerpiece of enforcement is the future European Data Protection Board, which is currently being set up in Brussels so as to be functional on 25 May 2018, when the GDPR becomes applicable. The European Data Protection Board will be a unique EU body, as it will have a European nature, being funded by the EU budget, but it will be composed of commissioners from national data protection authorities who will adopt decisions, that will rely for the day-to-day activity on a European Secretariat. The Secretariat of the Board will be ensured by dedicated staff of the European Data Protection Supervisor.
The Supervisor told the audience that he either already hired or plans to hire a total of “17 geeks” adding to his staff, most of whom will be part of the European Data Protection Board Secretariat. The EDPB will be functional from Day 1 and, apparently, there are plans for some sort of inauguration of the EDPB celebrated at midnight on the 24th to the 25th of May next year.
These are my thoughts here: the nature of the EDPB is as unique as the nature of the EU (those of you who studied EU Law certainly remember from the law school days how we were told that the EU is a sui generis type of economical and political organisation). In fact, the EDPB may very well serve as test model for ensuring supervision and enforcement of other EU policy areas. The European Commission could test the waters to see whether such a mixt national/European enforcement mechanism is feasible.
There is a lot of pressure on effective enforcement when it comes to the GDPR. We dwelled on enforcement, and one question that inevitably appeared was about the trend that starts to shape up in Europe, of having competition authorities and consumer protection authorities engaging in investigations together with, or in parallel with data protection authorities (see here – here and here).
“It’s time for a big change, and time for the EU to have a global approach“, the Supervisor said. And a change that will require some legislative action. “I’m not saying we will need an European FTC (US Federal Trade Commission – n), but we will need a Digital EU Regulator“, he added. This Digital Regulator would have the powers to also look into competition and consumer protection issues raised by processing of personal data (so, therefore, in addition to data protection issues). Acknowledging that these days there is a legislative fatigue in Brussels surrounding privacy and data protection, the Supervisor said he will not bring this idea to the attention of the EU legislator right now. But he certainly plans to do so, maybe even as soon as next year. The Supervisor thinks that the EDPB could morph into this kind of Digital Regulator sometime in the future.
The interplay among these three fields of law has been on the Supervisor’s mind for some time now. The EDPS issued four Opinions already that set the stage for this proposal – See Preliminary Opinion on “Privacy and competitiveness in the age of Big Data: the interplay between data protection, competition law and consumer protection in the digital economy“, Opinion 4/2015 “Towards a new digital ethics“, Opinion 7/2015 “Meeting the Challenges of Big Data“, and finally Opinion 8/2016 on “coherent enforcement of fundamental rights in the age of Big Data“. So this is certainly something the data protection bubble should keep their eyes on.
Enhanced global enforcement initiatives
Another question that had to be asked on enforcement was whether we should expect more concentrated and coordinated action of privacy commissioners on a global scale, in GPEN-like structures. The Supervisor revealed that the privacy commissioners that meet for the annual International Conference are “trying to complete an exercise about our future”. They are currently analyzing the idea of creating an entity with legal personality that will look into global enforcement cases.
Ethics comes on top of legal compliance
Another topic the conversation went to was “ethics”. The EDPS has been on the forefront of including the ethics approach in privacy and data protection law debates, by creating the Ethics Advisory Group at the beginning of 2016. I asked the Supervisor whether there is a danger that, by bringing such a volatile concept into the realm of data protection, companies would look at this as an opportunity to circumvent strict compliance and rely on sufficient self-assessments that their uses of data are ethical.
“Ethics comes on top of data protection law implementation”, the Supervisor explained. According to my understanding, ethics is brought into the data protection realm only after a controller or processor is already compliant with the law and, if they have to take equally legal decisions, they should rely on ethics to take the right decision.
We did discuss about other things during this session, including the 2018 International Conference of Privacy Commissioners that will take place in Brussels, and the Supervisor received some interesting questions from the public at the end, including about the Privacy Shield. But a blog can only be this long.
Note: The Supervisor’s quotes are so short in this blog because, as the moderator, I did my best to follow the discussion and steer it rather than take notes. So the quotes come from the brief notes I managed to take during this conversion.