Directive 95/46/EC on the protection of personal data
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The full title of this directive is Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. This article provides a general overview of the directive only.
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Context
The right to privacy is a highly developed area of law in Europe. All the member states of the European Union are also signatories of the European Convention on Human Rights(ECHR). Article 8 of the ECHR provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions. The European Court of Human Rights has given this article a very broad interpretation in its jurisprudence. In 1981 the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data was negotiated within the Council of Europe. This convention obliges the signatories to enact legislation concerning the automatic processing of personal data, which many duly did.
The European Commission soon realised that diverging data protection legislation in the EU member states would impede the free flow of data within the EU zone. Therefor the European Commission decided to harmonize data protection regulation and proposed the Directive on the protection of personal data.
Content
The directive regulates the processing of personal data, regardless if the processing is automated or not.
Scope
Personal data is defined as "any information relating to an identified or identifiable natural person ("data subject"); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;" (art. 2 a)
This definition is meant to be very broad. Data is "personal data" when someone is able to link the information to a person, even if the person holding the data cannot make this link. Some examples of "personal data": address, credit card number, bank statements, criminal record, ...
The notion processing means "any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;" (art. 2 b)
The responsibility for compliance rests on the shoulders of the "controller", meaning the natural or artificial person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; (art. 2 d)
The data protection rules are applicable not only when the controller is established within the EU, but whenever the controller uses equipment situated within the EU in order to process data. (art. 4) Controllers from outside the EU, processing data in the EU, will have to follow data protection regulation. In principle, any on line shop trading with EU citizens will process some personal data and is using equipment in the EU to process the data (the customers computer). As a consequence, the website operator would have to comply with the European data protection rules. The directive was written before the breakthrough of the Internet, and to date there is little jurisprudence on this subject.
Principles
Personal data should not be processed at all, except when certain conditions are met. These conditions fall into three categories: transparency, legitimate purpose and proportionality.
Transparency
The data subject has the right to be informed when his personal data are being processed. The controller must provide his name and address, the purpose of processing, the recipients of the data and all other information required to ensure the processing is fair. (art. 10 and 11)
Data may be processed only under the following circumstances (art. 7):
- when the data subject has given his consent
- when the processing is necessary for the performance of or the entering into a contract
- when processing is necessary for compliance with a legal obligation
- when processing is necessary in order to protect the vital interests of the data subject
- processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed
- processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject
The data subject has the right to access all data processed about him. The data subject even has the right to demand the rectification, deletion or blocking of data that is incomplete, inaccurate or isn't being processed in compliance with the data protection rules. (art. 12)
Legitimate Purpose
Personal data can only be processed for specified, explicit and legitimate purposes and may not be processed further in a way incompatible with those purposes. (art. 6 b)
Proportionality
Personal data may be processed only insofar as it is adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed. The data must be accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified; The data shouldn't be kept in a form which permits identification of data subjects for longer than is necessary for the purposes for which the data were collected or for which they are further processed. Member States shall lay down appropriate safeguards for personal data stored for longer periods for historical, statistical or scientific use. (art. 6)
When sensitive data is being processed, extra restrictions apply. (art. 8)
The data subject may object at any time to the processing of personal data for the purpose of direct marketing. (art. 14)
A decision which produces legal effects or significantly affects the data subject may not be based solely on automated processing of data. (art. 15) A form of appeal should be provided when automatic decision making processes are used.
Supervisory authority and the public register of processing operations
Each member state must set up a supervisory authority, an independent body that will monitor the data protection level in that member state, give advice to the government about administrative measures and regulations, and start legal proceedings when data protection regulation has been violated. (art. 28) Individuals may lodge complaints about violations to the supervisory authority or in a court of law.
The controller must notify the supervisory authority before he starts to process data. The notification contains at least the following information (art. 19):
- the name and address of the controller and of his representative, if any;
- the purpose or purposes of the processing;
- a description of the category or categories of data subject and of the data or categories of data relating to them;
- the recipients or categories of recipient to whom the data might be disclosed;
- proposed transfers of data to third countries;
- a general description of the measures taken to ensure security of processing.
This information is kept in a public register.
Transfer of personal data to third countries
Third countries is the term used in EU legislation to designate countries outside the European Union. Personal data may only be transferred to third countries if that country provides an adequate level of protection. Some exceptions to this rule are provided, for instance when the controller himself can guarantee that the recipient will comply with the data protection rules.
The European Commission has set up the "Working party on the Protection of Individuals with regard to the Processing of Personal Data", commonly known as the "art. 29 Working Party". The Working Party gives advice about the level of protection in the European Union and third countries.
The Working Party negotiated with U.S. representatives about the protection of personal data, the Safe Harbor Principles were the result. According to critics the Safe Harbor Principles do not provide for an adequate level of protection, because it contains less obligations for the controller and allows the contractual waiver of certain rights.
Implementation by the Member States
EU directives are addressed to the member states, and aren't legally binding for citizens in principle. The member states must transpose the directive into internal law. Directive 95/46/EC on the protection of personal data had to be transposed by the end of 1998. All member states have enacted their own data protection legislation.
See also: privacy, data privacy, Information Commissioner
External links
- EU data protection page (http://europa.eu.int/comm/internal_market/privacy/index_en.htm). The European Commission provides elaborate information on its website. The following subjects are covered:
- Legislative documents
- Transposition and implementation of Directive 95/46/EC
- European Data Protection Supervisor
- National Data Protection Commissioners
- Art. 29 Data protection Working Party
- Adequacy of protection in third countries and model contracts for the transfer of personal data to third countries
- International links