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Noting the prescriptive and inflexible nature of the EU’s draft data protection regulation, Former UK Information Commissioner Richard Thomas used his keynote address at the IAPP Data Protection Intensive in London to outline an alternative framework that would focus more simplistically on outcomes, provide incentives for regulatory requirements and allow for as much self-enforcement as possible.

While allowing that he can only strongly suggest his proposal to the policy-makers, Thomas said his alternative would replace the bureaucratic nature of the proposed regulation with language that relies on context and accountability, corporate culture and reputation in a co-regulatory approach that marries the law with a company’s own vested interests.

The law he envisions, which would replace the widely criticized Chapter IV of the proposed regulation, “would put a mandatory basis on the trigger to do something, but it wouldn’t tell the company exactly how to do it,” he said. “The law focuses on the what, not the how.”

Thomas called Chapter IV’s mandate that organizations of 250 or more employees maintain a data protection officer “arbitrary” and too burdensome for small- and medium-sized businesses, effectively catching low-risk big organizations and missing high-risk small organizations. Additionally, the proposal is too burdensome for data protection authorities, not allowing them the flexibility to prioritize the willful over the cavalier, what Thomas calls being “selective in order to be effective.”

Finally, Thomas says the mandate that personal impact assessments (PIA) be routinely published in detail is the wrong idea.

“A good assessment is not necessarily something you share with the outside world, let alone rightly with the regulator,” he said, adding such a practice could see companies devising defensive approaches to impact assessments.

But there is a place for PIAs within comprehensive privacy programs, Thomas said, and accountability is a major aspect of what he proposes. Organizations taking the right measures through a comprehensive privacy program should demonstrate and verify that.

It’s essential to look at specific and actual risks and identify what kind of data could lead to harm if mishandled, he said. Risky categories of data processing might include automated profiling, data on sex health, racial or ethnic origin, public surveillance and large systems involving children or genetic data. For those kinds of risks, Thomas agrees with the proposed regulation that a PIA must be produced and, upon demand, shared with the data protection authority. But launching an elaborate notification process to the data subject, making the PIA public or gaining prior approval from the data protection authority are unnecessary steps.

“Responsibility ought to lie on the shoulders of the senior management of the organization in question,” he said.

In those situations where a PIA reveals that there could, without appropriate measures, be a significant risk of serious harm, Thomas suggests companies adopt a Binding Corporate Code. While such a title sounds like a close relative of Binding Corporate Rules, Thomas says there are distinct differences. Rather than uniform standards, such a program would be customized for each unique organization in contextualized and flexible ways.

“It is not a one-size-fits-all approach,” he said. “I’m not saying you can go away and write your own code with any framework at all. It does need to meet core, substantive and procedural requirements,” he said. Those would include sufficient documentation to demonstrate regulation-compliant data processing, measures adopted to address specific identified risks and any further safeguards and security measures required to meet the regulation’s requirements. The rules should be legally binding, certified at least every three years and published on the data controller’s website.

To get it right, a company must address its paperwork, technology and the people and culture inside the organization, Thomas said, noting, “I continue to believe that fundamentally, all three of those elements must be identified and drawn together.”

Thomas believes that self-certification can work, but there must be heavy sanctions to ensure compliance, and responsibility should be “where it belongs, on the shoulders of the regulators.” He’s skeptical of using trusted third parties, though, citing their relative ineffectiveness in the APEC region.

Thomas plans to put his proposal forward to the powers that be in the near future and, in the end, hopes to see a law that is “more outcome-focused, simpler in practice and promoting effectiveness,” he said, adding it would be “less burdensome in the long run both for controllers and data protection authorities.”

Written By

Angelique Carson, CIPP/US

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