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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, 5 January 2018 Related reading: Tim Cook talks Apple's privacy stance, pushback to app-tracking framework


Greetings from Brussels!

A new year is upon us, so let me send you all hearty best wishes for 2018, and may the year be good to you! 

If only we had a crystal ball to predict the flow of the coming year, we’d all be a little more serene; alas, we can only speculate on the numerous complex business and political permutations and where they might lead us. Prediction and forecasting is a keen talent, but it doesn't require extraordinary powers to see an enhanced regulatory environment on the horizon for Europe. We can certainly expect authorities to continue to step up their three-fold digital enforcement strategy of applying tax, privacy and competition rules — and in certain respects these enforcements will intersect and may bear an influence on one another. This is clearly evident in the technology and digital sectors, where in 2017 we saw some of the more influential tech giants face enhanced regulatory scrutiny in Europe, as well as elsewhere: Washington, DC, has also flexed its muscles of late, showing renewed purpose to curb the perceived excesses of Silicon Valley.

In Europe, EU Competition Chief Margrethe Vestager is increasingly turning her attention to how the corporate giants stockpile and use big data, including customer records, industry statistics, and other information. In a recent interview, Vestager stated that, "in some areas, these data are extremely valuable," adding that the competitive nature of data can give certain parties "immense business opportunities that are not available to others." At issue for European competition regulators is whether dominant companies holding big data can exclude new competitors from markets if they control exclusive information needed to satisfy customers or cut costs. My money is on cross industry regulators engaging in more dialogue in 2018 to ensure more consistent efforts in the regulatory environment; I suspect the European DPAs will be consulted more on the big issues of the day. 

Undoubtedly, 2018 could see the final word on the viability of the Privacy Shield. So much hangs in the balance for governments, businesses, and consumers. Despite the European Commission stating in October that the U.S. effort was generally "fine," Europe’s WP29 issued its own report noting that, unless the U.S. significantly improves Privacy Shield in several areas by the GDPR launch date, they’ll go to court to get the opinion of the ECJ. These concerns, resolved or not, will be decisive for personal data operations, and it is worth noting that ECJ opinions tend to heavily favor protecting the civil and human rights granted to EU citizens.

As is my yearly tradition, I bought the Economist’s "The World in 2018," and my first inclination was to seek out any privacy mentions. I wasn’t disappointed. The lead article of the business section is entitled, "The EU’s tough new data protection rules," expounding on the incoming GDPR. A comparison is made with the U.S. Dodd-Frank legislation passed in 2010 to reign in Wall Street to avert another financial crisis and reference to the GDPR as the most complex piece of regulation the EU has ever produced. The eminent privacy thinker Christopher Kuner, of the Free University of Brussels, is cited saying the "first few years will be a mess," predicting a wave of lawsuits. 

The article highlights the extraterritorial complexities of processing EU citizen data wherever that may be. In an age of IoT and artificial intelligence, the practicalities of notifying data subjects that their data is being collected and processed seems improbable, let alone enforceable. One of the big questions in 2018, as it was already in 2017, will remain: What will be the cost of the GDPR data protection regime to the global society at large? Will the rules hinder the very innovation that seeks to benefit society? Business leaders will be faced with tough decisions and possible trade-offs as they look to comply whilst maintaining competitive advantage.

There is plenty to ponder on the year ahead, from the Brexit talks to Catalonia’s nationalism, as well as Italy’s spring elections, which might be the next big populist surge. While I watched Sydney’s New Year's fireworks display up close and personal, I couldn’t help but wonder what other fireworks 2018 might have in store for the European continent.  


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