The Proposed Regulation and the Construction of a Principles-Driven System For Individual Data Protection

Abstract

The overhaul of the EU data protection regime is a welcome development for various reasons: the 1995 Directive is largely outdated and cumbersome within an Internet (indeed, Web 2.0) environment. The 2008 Framework Decision is a practically unenforceable instrument, and even harmful in its weakness in protecting personal data. The Commission's proposed Regulation and Directive intended to replace it to improve the data protection afforded to individuals in their respective fields of application across the EU today. This paper considers some of the principles, some new, some old, that underpin the proposed new data protection framework, which was released on 25 January 2012. We offer an analysis of the key principles of lawfulness of the processing, access to justice, transparency and accountability – principles intended to be all-encompassing, abstract and omnipresent. Some of the above principles may appear to be new, but such is not necessarily the case. For instance, the principle of lawfulness is central in the current 1995 Directive, but it reappears in an amended form in the proposed EU data protection framework. On the other hand, the principle of accountability is an addition to the list that will need to prove its value in practice. Regardless of the outcome of the EU data protection framework amendment process and the ultimate wording of the instruments that compose it, the application and visibility of these principles ought to remain unaffected.

Keywords: Data, Protection