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From Brussels: The New EU Data Protection Regulation -- Will they or won't they? And if so, when?

Susan Foster, a Member in Mintz Levin's London office, attended last week's IAPP Conference in Brussels and filed this report -- 

Written by Susan Foster

Sometimes the most interesting things that emerge from conferences are whispered across the aisle just after a presentation or debated by attendees off-site over a glass or two of wine.

The big-ticket question at last week’s IAPP Europe Data Protection Congress in Brussels wasn’t on the agenda:  Will members of the European Parliament and the European Council manage to bridge their differences and pass a new Data Protection Regulation amidst significant competing pressures from various stakeholders?

A new Regulation (to replace the 1995 Directive) was announced by the European Commission in January 2012.  (Our summary of the Regulation can be found here).   European legislators originally estimated that the new Regulation could be passed as soon as the middle of 2013 (to be followed by a two year implementation period).  Jan Philipp Albrecht, a Member of the European Parliament and champion of the Regulation, conceded last week that the end of 2013 might be more realistic.  However, none of the government speakers whose sessions I attended considered a scenario where the Regulation simply wasn’t adopted for lack of sufficient consensus on its substance.

Some members of the audience, however, noted the deep fault lines that were evident between the views of various speakers on issues ranging from questions of power-sharing among national governments (specifically, the potential loss of power of certain “stricter” national data protection offices under the “one stop shop” system) to widely varying assessments of the practical and economic burden that the Regulation would place on businesses (will businesses flee Europe due to increased compliance costs and the threat of substantial fines, or will customers be so enamored of European-style privacy that they will flock to companies that adhere to the Regulation?).

Testing which way the wind is blowing – and how fast – is always a tricky proposition.  But my overall sense from the recent Congress is that the Regulation will pass – eventually, and probably not in 2013 -- in a form that retains the proposed fines (enthusiastically endorsed by several government speakers), breach notice requirements (with more realistic timing than the current proposal of 24 hours), and expanded notion of what constitutes personal data (everything you’ve ever posted on the Web?).  But some of the items that largely didn’t even reach the agenda at the Congress, such as the logistically challenging “right to be forgotten” and the “right of portability,” may not make it through the legislative process, or may survive in an industry-specific form.

Watch this space.  But in the meantime, if you are a tech company, keep on developing those privacy compliance products.  More than a few were already being promoted last week at the Congress.  And that may be the best predictor that we have.

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Cynthia J. Larose

Member / Chair, Privacy & Cybersecurity Practice

Cynthia J. Larose is Chair of the firm's Privacy & Cybersecurity Practice, a Certified Information Privacy Professional-US (CIPP-US), and a Certified Information Privacy Professional-Europe (CIPP-E). She works with clients in various industries to develop comprehensive information security programs on the front end, and provides timely counsel when it becomes necessary to respond to a data breach.