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Tuesday, 13 March 2012

Privacy Must Be A Core Business Competence

The European Commission's proposed General Data Protection Regulation is just that: general regulation. No longer can businesses afford to treat data protection compliance as a 'bolt-on' to their marketing department, or even the compliance department. CEO's need to understand how the demands of personal data privacy are going to re-shape their business.

Just ask yourself whether you think the following rights go to the heart of any business that deals with individuals: the "right to be forgotten", "data portability", "data protection by design and by default", the logging/reporting of personal data security breaches, personal data processing impact assessments, prior consultation and regulatory consent for potentially risky processing. Not to mention requirements for enhanced internal controls, numerous enforcement and compliance burdens, and the obligation to appoint a data protection officer.

The trouble is, none of these concepts is straightforward, nor are the rules easily digested.

But digest them you must. Even if they don't make it onto the statute books, the genie is out of the bottle. Many of these 'rights' reflect the current concerns of at least some consumers (albeit most of them probably also happen to work for the European Commission and various consumer groups). Existing services will be judged against them as 'best practice'. Some businesses and new entrants without legacy systems will factor them into new services. And if they do make it onto the UK's statute books, you can bet they'll be gold-plated.

The Society for Computers and Law has done a great job of stimulating debate on the EC's proposals, and helping identify the implications for businesses generally. But there's a long way to go before the practical implications for businesses and business models are understood and fed back to the authorities in time for a new directive to be finalised in 2014. In fact, bitter experience suggests this won't happen at all.


At a recent seminar, Mark Watts, Chair of SCL's Privacy and Data Protection Group, polled about 100 delegates on the questions asked in the 4 week Ministry of Justice consultation on the EC's plans. The results can be downloaded via the Society for Computers and Law web site. One response made a telling point:
'Writing wide-ranging, broadly applicable laws that affect almost everything a business does but which can only be interpreted and implemented with the assistance of specialist data protection lawyers is surely not the best way to go. Laws that potentially affect so much of what ordinary business does on a day to day basis should be capable of being understood by "ordinary businessmen". The Regulation is a long way from this and will keep data protection lawyers in business for years.'
Further, As Dr Kieron O'Hara explains in relation to the technological challenges presented by the 'right to be forgotten' in his excellent article in this month's Computers & Law magazine, the EC's ambitious plan for personal privacy requires "a socio-legal construct, not a technical fix."