EU Regulators Outline Guidance on New Privacy Regime

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By Stephen Gardner

A consortium of EU privacy chiefs Jan. 17 outlined the official compliance guidance it intends to provide companies in 2017 on the bloc’s new privacy regime.

Multinational companies doing business in the European Union, including U.S. technology companies such as Alphabet Inc.'s Google and Facebook Inc., are hungry for guidance on the harmonization of EU privacy regulatory enforcement and oversight under the General Data Protection Regulation (GDPR) set to take effect in May 2018. Compliance concerns are high partly because of the potential for massive fines—up to 20 million euros ($21.4 million) or up to 4 percent of a company’s global revenue—under the new regime. Official guidance for companies on specific provisions of the GDPR is also important because the foundation document is broadly worded, lengthy and complex, privacy attorneys said.

Companies will especially welcome the Article 29 guidance on transparency because transparency “runs through the whole of the GDPR,” Ardi Kolah, executive fellow and co-director of the GDPR Transition Program at the U.K.'s Henley Business School, told Bloomberg BNA Jan. 17.

The Art. 29 Working Party, which is made up of privacy officials from the 28 EU member states, plans to issue guidance this year on the GDPR’s consent, individual profiling and transparency provisions. It said it would finalize work begun in 2016 on privacy certification, high-risk data processing and administrative fines under the GDPR, and on the organization and functioning of the new European Data Protection Board, which will replace the Art. 29 Working Party when the GDPR takes effect.

The Art. 29 Working Party also plans, in 2017, to update existing guidance on data transfers from the EU to non-EU countries and on data breach notification requirements. It will host an April 5-6 workshop at which “interested stakeholders will be invited to present their views and comments on the new 2017 priorities,” it said in a statement.

In December 2016, the officials issued guidance on the extent to which corporate data protection officers may be held personally liable for noncompliance with the GDPR and the scope of a new data portability right. The group also issued guidance on the factors for identifying the lead privacy office for complaints and enforcement for particular cases.

Transparency Principle

The GDPR requires data controllers to be transparent about why and how data is being processed, and to communicate with data subjects in an easily accessible and understandable way. Transparency guidance could “put some flesh on the bones with respect to how organizations demonstrate compliance with the principles,” Kolah said.

Data supervisors would expect companies to be able to “demonstrate they have the technology and organizational capability” to implement new GDPR provisions, or that provisions have been strengthened compared to the 1995 EU Data Protection Directive, such as the right to be forgotten, under which data subjects can request erasure of their data, Kolah said.

In addition to its GDPR guidance work, the Art. 29 Working Party statement said non-EU data protection agencies “will be invited to exchange views on the GDPR and its implementation” at a May 18-19 workshop.

To contact the reporter on this story: Stephen Gardner in Brussels at correspondents@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com

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