20150610 febelmar privacy matters eu regulation

Privacy MattersThe EU regulatory challenges aheadWednesday 10th June 2015

Géraldine Proust – EU Affairs ManagerMathilde Fiquet – EU Affairs Manager

FEDMA aims to:

FEDMA represents:Promote

ProtectInform

Develop

Uphold ethical values

(Article 29 working party approved Codes of Conduct)

the European direct and interactive marketing industry

EuropeanDirect

Marketing Associations

Companies with multinational

businesses (list brokers, communications agencies, mailing houses, printers, postal operators, etc.)

Federation of European Direct & Interactive Marketing

Offline

Direct Mail

Door drop

Federation of European Direct & Interactive Marketing

Online

Telemarketing Mobile marketing Fax marketing Email marketing Online Behavioural

Advertising Search marketing Social Media

FEDMA covers all channels in B2B & B2C

Digital Single Market Package

Consumer affairs focus

Data Protection and e-privacy focus

Legal Affairs – Digital Single Market package

Published by the European

Commission on the 6th of May 2015

• Digital Single Market Package – Quotes from introduction by Mr Juncker• “ensure teat European citizens will soon be able to use their

mobile phones across Europe without having to pay roaming fees”

• “ensure that consumers can access services, music, movies and sports events on their electronic devices wherever they are and regardless of borders”

• “create a level playing field where all companies offering goods and services in the EU are subject to the same DP and consumer rules, regardless of where their server is based”

Better online access for consumers and businesses across Europe

Cross-border parcel delivery

Preventing unjustified geoblocking

Better access to digital content

Reducing VAT

Topic Issue Solution

ecommerce rules - Minimum harmonisation for tangible goods and legal void for intangible goods

- Enforcement

- Amended proposal 2015 (proposal for simple and effective cross border contract rules)

- Revision Consumer Protection Coop

Parcel delivery Lack of information, transparency, excessive costs and interoperability

Measures to improve price transparency and enhance regularity oversight 2016

Unjustified geo-blocking Consumers not being able to buy online, are denied access to websites based in other MS or pay a geographical adapted price (e.g. through rerouting)

- Legislative proposals (e.g. targeted change to Ecommerce D and art 20 of the Services D) 2015

- Competition sector inquiry 2015

Better access to digital content Lack of portability due to copyright Legislative proposals 2015

Reduce VAT related burdens many different national systems Legislative proposals 2016

Creating the right conditions and level playing field for advanced

digital networks and innovative servicesTopic Issue Solution

Making the telecom rules fit for purpose

Isolated national markets, lack of regulatory consistency and predictability, lack of investment

Proposals 2016

Fit media framework On-demand services are subject to lower obligations

Revision AVMS Directive 2016

Fit purpose regulatory environment for platforms and intermediaries

Enormous amount of data and use of algorithms to turn this into usable information. Control access to online markets and significant influence on remuneration of players

Comprehensive assessment of the role of platforms 2015New regulatory questions addressed in up-coming Internal Market Strategy

Reinforcing trust and security in digital services and handling of personal data

- Violation fundamental rights and economic loss to due cyber criminality

- Exclusion of internet service providers, tracking and geo-location

- Public-Private partnership on Cybersecurity 2016

- Revision e-privacy directive 2016

Maximising the growth potential of the digital economy

Topic Issue Solution

Building a data economy Technical and legislative barriers to BigData, cloud services and Internet of Things (e.g. data location)

Free flow of data initiative 2016 European Cloud initiative 2016

Boosting competitiveness through interoperability and standardisation

Standardisation must keep pace with technology and standards decided outside EU

Integrated standardisation planRevision and extension of the European Interoperability Framework 2015

E-inclusive society Lack of digital skills and e-government E-government action plan 2016-2020

Legal Affairs - Consumer Affairs• Strategy: ensure the right balance between consumer and business interests-keeping

the channels open

• Misleading and Comparative Directive: revision of the Directive before end 2015• Consumer Rights Directive implementation report 2016• Fitness check of the Consumer Acquis 2016• Unfair Commercial Practices Directive: revision of the guide and possible revision 2016-

2017

Legal Affairs - Data Protection

The General Data Protection Regulation

EC ProposalCommissioner Reding

2012

January 2012

G D P R Timeline

DAPIX JHALIBE +

Opinion giving Committes

Rapporteur: Albrecht

Hearings +Consultation + Stakeholders meetings

No agreement

Albrecht’sAmendmentsNo agreement

DK

CY

EU legislative Process

2013

2014

Proposed text is a good basis for

work

No agreement. Legal service opinion

Chapter I-IV

One Stop Shop

IE

LT

More than 3000 Amendments fromMEPS

21th October LIBE vote

The rapporteurs work oncompromised amendments

12th March Plenary Vote

Official position of EP 1st reading

621 votes in favor10 votes against

22 abstentions

Hoping for a common position

Agreed onChapter V

GR

2

0

1

4

ITHoping fortrialogue

EP elections New majority

New MEPs

Nomination of new rapporteur and shadow

rapporteurs for the GDPR2

0

1

5

LV

Closing theremainingchapters

LUX Trialogue

Preparing the Trialogue

Status of negotiations

Chapter I General Provisions Agreement on Territorial scope and public sector provisions

Definitions - Remain to be agreed in June

Chapter II Principles Agreed on (March 2015)

Chapter III Rights of the data subject Remain to be agreed in June

Chapter IV Controllers and processors Agreed on (December 2014) - the so called risk based approach

Chapter V Transfer of personal data to a third country or international organisation

Agreed on (June 2014)

Chapter VI Independent supervisory authority Agreed on (March 2015) – The so called One Stop Shop

Chapter VII Cooperation and consistency Agreed on (March 2015) – The so called One Stop Shop

Chapter VIII Remedies, liability and sanctions Remain to be agreed in June

Chapter IX Provisions relating to specific data processing situation

Agreed on (December 2014)

Chapter X Delegated and implementing acts Remain to be agreed in June

Chapter XI Final provisions Remain to be agreed in June

?

Reach a commonposition

TRIALOGUE

Representativesof the European

Commission

Council presidency

Rapporteurs & shadow

rapporteurs

Negociated text

European Parliament foradoption within 4 months

Council for adoptionwithin 4 months

Risks for the Direct Marketing industry:

Limited access to data

Strengthened rules on profiling

Consent will become explicit

More information to provide to the individual

Burden of proof and documentation for the controller

Broader scope for the individual to object to the processing of data

Consent

'the data subject's consent' shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.

'the data subject's consent' means any freely given specific, informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed;

EC proposal + EP position95/46/EC Directive

Relationship with the E-privacy Directive?

Legitimate interest

The balancing test:

Legitimate interest of the

controller

Interests and fundamental rights of the data subject

Safeguards: specific right to object from direct marketing (article 14)

(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the

interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1).

Today’ situation:

Balancing test in the Parliament’s position:

Alternative legal grounds for marketers: consent or contract which bring the situation to an opt-in

processing is necessary for the purposes of the legitimate interests pursued by the controller or in case of disclosure, by the third party

to whom the data is disclosed, and which meet the reasonable expectations of the data subject based on his or her relationship with the controller, except where such interests are overridden by

the interests or fundamental rights and freedoms of the data subject which require protection of personal data

The European Parliament’s position:

Article 29 Working Party recent opinion on the Controller’s legitimate interest to process data

Legitimate interest

Profiling

European Parliament’s position Council current proposal Opposition of Member States on this position

(Opt-out) Right to object to

profiling

(Opt-in)

Profiling which produces legal effect or significantly affect the data subject should be

based on:

-Entering a contract

-Data subject’s Consent

-national law

(Opt-out)

Right not to be subject to a decision based

solely on automated processing, including

profiling, which produces legal effects or severely affects the

data subject

Implementation of the GDPR and the role of self regulation

Helping companies to implement the Regulation

Translate legal text in concrete rules for the direct marketing industry

Updating of the codes of conduct

Development of guidance

Legal Affairs- e-privacy Directive

The European Commission plans on reviewing the e-privacy Directive as soon as the General data Protection Regulation is adopted

New rules on cookies

New rules on unsolicited communication

@fedma

Sébastien Houzé Channel

facebook.com/theDMway

[email protected]@fedma.org+32 2 779 4268www.fedma.org

Questions?