As announced last week, the European Data Protection Supervisor (“EDPS”) released on September 23, 2016 an opinion on “coherent enforcement of fundamental rights in the age of big data.”  This opinion follows an earlier Preliminary Opinion on privacy and competitiveness in the age of big data, published in 2004 (see our previous blog post here).

According to the EDPS, data-driven technologies and services are important for economic growth, but the users of those services are generally unaware of the nature and extent of the “covert tracking”  that fuels the sector.  The growing imbalance between consumers and service providers would diminish choice and innovation and threaten the privacy of individuals.  In fact, the rights of individuals enshrined in the EU Charter of Fundamental Rights would be threatened by “normative behavior and standards that now prevail in cyberspace.”    At the same time, EU rules on data protection, consumer protection, and antitrust and merger control are applied in silos, despite their common objectives.

The EDPS makes three recommendations:

  • Better reflect the interests of individuals in big data mergers. While personal data receives increased attention in mergers as a commodity that can be monetized, the merger control rules should be amended so as to make the protection of privacy one of its objectives.
  • Create a digital clearinghouse. In order to foster coherence in enforcement of digital rights, the EDPS offers to facilitate the creation of a platform where regulators responsible for the digital sector can come together on a voluntary basis to discuss matters of common interests, such as: the legal regime that is most appropriate for pursuing particular cases or complaints related to online services, how data protection and consumer protection standards can inform “theories of harm” under competition law, the impact of sanctions and remedies on digital rights, and interests and synergies between enforcement bodies.
  • Create an EU values-based common area on the web. In an attempt to disrupt the binary choice between free services that rely on tracking for income out of advertising and paid-for services, the EDPS proposes to create a “common area” for individuals to interact without fear of being tracked in which the EU Charter’s rights are fully respected.  Existing services developed by civil society and developer initiatives could serve as a model and pool of experience in this area.

On September 29, 2016 the EDPS and the European consumer organization BEUC will host a joint conference on “Big Data: individual rights and smart enforcement.”  Speakers include EU Commissioner for Competition Margrethe Vestager, Federal Trade Commissioner Terrell McSweeny, BEUC Director General Monique Goyens, and the EDPS, Giovanni Buttarelli.  The conference will bring together leading regulators and experts in the competition, data protection and consumer protection spheres to discuss key areas of economic and societal change and to promote closer dialogue and cooperation among regulatory and enforcement bodies.