The first steps of a revolution with a set date (25 May 2018): the “new” General Data Protection regime

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by Pedro Madeira Froufe, Editor


1. Homo digitalis[i] is increasingly more present in all of us. It surrounds us, it captures us. Our daily life is digitalising rapidly. We live, factually and considerably, a virtual existence… but very real! The real and the virtual merge in our normal life; the frontiers between these dimensions of our existence are bluring. Yet, this high-tech life of ours does not seem to be easily framed by law. Law has its own time – for now barely compatible with the speed of technologic developments. Besides, in face of new realities, it naturally hesitates in the pursuit of the value path (therefore, normative) to follow. We must give (its) time to law, without disregarding the growth of homo digitalis.

2. Well, today (25 May 2018) the enforcement of Regulation 2016/679 (GDPR) begins. Since 25 January 2012 (date of the presentation of the proposal for the Regulation) until now the problems with respect to the protection of fundamental rights – in particular the guarantee of personal data security (Article 8 CFREU) – have been progressively clearer as a result of the increase in the digital dimension of our lives. Definitely, the personal data became of economic importance that recently publicized media cases (for example, “Facebook vs. Cambridge Analytics”) underline. Its reuse for purposes other than those justifying its treatment, transaction and crossing, together with the development of the use of algorithms (so-called “artificial intelligence” techniques) have made it necessary to reinforce the uniform guarantees of citizens, owners of personal data, increasingly digitized.
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The ultimate guide(line) to DPIA’s

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by João Marques, member of the Portuguese Data Protection National Commission and member of CEDU

Although merely advisory in its nature, the Article 29 Working Party (WP 29) has been a major force in guaranteeing a minimum of consistency in the application of the Directive 95/46/CE, allowing member states’ public and private sectors to know what to expect from their supervisory authorities perspectives on various data protection subjects. Its independence has played a major role in the definition of its views and opinions, focusing on the fundamental rights at stake and delivering qualified feedback to the difficult issues it has faced.

The new European legal framework on data protection has produced a step forward on this regard by instituting a new formal EU Body – the European Data Protection Board – EDPB (Art. 68 of the General Data Protection Regulation – GDPR). This will represent a significant step forward in the European institutional landscape concerning data protection but it does not mean that the WP 29 is already dead and buried, quite the opposite.

As it is already known, the EDPB will have far reaching powers designed to guarantee consistency and effectiveness to the rules of the regulation across the EU. One of the said powers translates into the issuance of guidelines in several matters [Art. 70 (1)(d), (f), (g), (h), (i), (j), (k), (m) of the GDPR].

The problem is, of course, that this new EU Body will only exist from May 2018 onwards, leaving a gap of two years (from May 2016, when the regulation entered into force) to be filled by the current legal and institutional frameworks. As such the WP29 took it into its hands to materialize these particular tasks of the EDPB during this transitional phase, fully aware that the guidelines it may issue for the time being could still be rebutted by the EDPB members. Nevertheless this is a calculated risk as the members currently sitting in the WP 29 will almost certainly be the ones who’ll be sitting in the EDPB.

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Data Protection Officer according to GDPR

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by André Mendes Costa, masters student at University of Minho
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In an ever changing world of information technologies, privacy and data protection inevitably attracts considerable attention.

The Portuguese Data Protection Law and the EU Directive 95/46 will be soon replaced by a new European and National legal framework. In fact, the new General Data Protection Regulation (GDPR) alters profoundly the paradigm of the personal data protection legal regime. The 679/2016 Regulation (GDPR) is part of a new European community legislative package which also includes a directive that lays down the procedures for dealing with personal data by the competent authorities for the purposes of prevention, research, detection and prosecution of criminal offences or the execution of criminal penalties. The Regulation came into force on 25th May and establishes a vacancy period of 2 years, providing the necessary time for the public and private sectors to equip themselves to face the new regulatory demands.

This brief analysis concentrates on the post of the data protection officer (DPO), on his/her duties and competencies and on those entities who are responsible for his/her appointment.

In the new European legislation there is an important change of paradigm in the protection of personal data namely the suppression – with a few exceptions contained in the Regulation – of the requisite of pre notification to the National Commission of Data Protection (NCDP). This change assigns to the person responsible for the processing of data the onus of legal guarantor of his/her cases, thus fully observing the Regulation. In fact, in the cases where there is no prior notification to the competent authority (NCDP), the Regulation has found other forms of guarantying that the processing of personal data is legally protected by creating the post of a data protection officer (DPO).
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