By Daniel Cooper, Erin Egan, Henriette Tielemans, and David Fink of Covington & Burling’s privacy and data protection practice group

This article originally appeared in a Covington & Burling LLP Privacy & Data Protection Advisory and is reprinted here with permission.  

The European Commission has initiated a public consultation on “the legal framework for the fundamental right to protection of personal data.” The CommissionA has indicated that the consultation is intended to gather information on the challenges that should be addressed to maintain an effective and comprehensive legal framework for data protection. While the Commission has not stated if the Data Protection Directive (95/46/EC) will be reopened, the consultation could pave the way for doing so.
 
The Commission is soliciting views on the following three questions:
 
• What are the new challenges for data protection, in particular in the light of new technologies and globalization?

• Does the current legal framework meet these challenges?  

• What future action would be needed to address the identified challenges?

Responses may be filed until December 31, 2009.
 
The consultation follows several tentative moves by the Commission to re-examine, and potentially re-open, the Data Protection Directive. In November 2008, announced the appointment of an Expert Group to assist the Commission in identifying challenges for the protection of personal data in the EU, and to put forward proposals for addressing the challenges against the background of rapidly changing technology, increased globalization, and the new institutional framework that is meant to arise once the Lisbon Treaty is ratified by EU member states.
In May of this year, the Commission held a public conference to examine new challenges for the protection of personal data. Justice, Freedom, and Security Commissioner Jacques Barrot noted at the time that “…our existing general principles for the protection of personal data are more than ever necessary…. These principles form undeniably a solid base which has proved its worth in all Member States and has served as inspiration to numerous third countries. However, the time has come now to look at new challenges so that Europe and its much-admired model for the protection of personal data continues to provide the necessary protection—not only in today’s world but also in tomorrow's world.”
Recent debates on revisions to the e-Privacy Directive (2002/58/EC) have revealed that many stakeholders believe European data protection rules should be updated to address new issues that have arisen as the Information Society evolves.