2. Privacy Matters
The EU regulatory challenges ahead
Wednesday 10th June 2015
Géraldine Proust – EU Affairs Manager
Mathilde Fiquet – EU Affairs Manager
3. FEDMA aims to:
FEDMA represents:
Promote
Protect
Inform
Develop
Uphold ethical values
(Article 29 working party approved Codes of Conduct)
the European direct and interactive
marketing industry
European
Direct
Marketing
Associations
Companies with
multinational
businesses
(list brokers, communications
agencies, mailing houses,
printers, postal operators, etc.)
Federation of European
Direct & Interactive Marketing
4. 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
5. Digital Single Market Package
Consumer affairs focus
Data Protection and e-privacy focus
6. Legal Affairs – Digital Single Market package
Published by the
European
Commission on the
6th of May 2015
7. • 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”
8. 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
ReduceVAT related burdens many different national systems Legislative proposals 2016
9. Creating the right conditions and level playing field for advanced
digital networks and innovative services
Topic 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 2015
New 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
10. Maximising the growth potential of the digital economy
Topic Issue Solution
Building a data economy Technical and legislative barriers to Big
Data, 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 plan
Revision and extension of the
European Interoperability Framework
2015
E-inclusive society Lack of digital skills and e-government E-government action plan 2016-2020
11.
12. 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 ConsumerAcquis 2016
• Unfair Commercial Practices Directive: revision of the guide and possible revision 2016-
2017
13. Legal Affairs - Data Protection
The General Data Protection Regulation
14. EC Proposal
Commissioner Reding
2
0
1
2
January 2012
G D P R Timeline
DAPIX JHA
LIBE +
Opinion giving Committes
Rapporteur:Albrecht
Hearings +
Consultation + Stakeholders meetings
No agreement
Albrecht’s Amendments
No agreement
DK
CY
EU legislative Process
15. 2
0
1
3
2
0
1
4
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 from
MEPS
21th October LIBE vote
The rapporteurs work on
compromised amendments
12th March PlenaryVote
Official position of
EP 1st reading 621 votes in favor
10 votes
against
22
abstentions
Hoping for a
common position
Agreed on
ChapterV
GR
16. 2
0
1
4
IT
Hoping for
trialogue
EP elections
New majority
New MEPs
Nomination of new
rapporteur and shadow
rapporteurs for the GDPR2
0
1
5
LV
Closing the
remaining
chapters
LUX Trialogue
Preparing theTrialogue
17. Status of negotiations
Chapter I General Provisions Agreement onTerritorial 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
ChapterV Transfer of personal data to a third
country or international organisation
Agreed on (June 2014)
ChapterVI Independent supervisory authority Agreed on (March 2015) –The so called One Stop Shop
ChapterVII Cooperation and consistency Agreed on (March 2015) –The so called One Stop Shop
ChapterVIII 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
18. ?
Reach a common
position
TRIALOGUE
Representatives
of the European
Commission
Council
presidency
Rapporteurs &
shadow
rapporteurs
Negociated text
European Parliament for
adoption within 4 months
Council for adoption
within 4 months
19. 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
20. 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?
21. 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:
22. 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
23. 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
24. 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
25. 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
