On September 23, 2016, the European Data Protection Supervisor (the “EDPS”) released Opinion 8/2016 (the “Opinion”) on the coherent enforcement of fundamental rights in the age of big data. The Opinion updates the EDPS’ Preliminary Opinion on Privacy and Competitiveness in the Age of Big Data, first published in 2014, and provides practical recommendations on how the EU’s objectives and standards can be applied holistically across the EU institutions. According to the EDPS, the Digital Single Market Strategy presents an opportunity for a coherent approach with respect to the application of EU rules on data protection, consumer protection, antitrust enforcement and merger control. In addition, the EDPS calls for greater dialogue and cooperation between data protection, consumer and competition authorities in order to protect the rights and interests of individuals, including the rights to privacy, freedom of expression and non-discrimination.
In particular, the Opinion makes the following recommendations:
- A digital enforcement clearing house. The EDPS proposes the establishment of a digital clearing house for enforcement in the EU digital sector, which will consist of a voluntary network of contact points in national and EU regulatory authorities responsible for regulation in the digital sector. These authorities must be willing to (1) enhance their respective enforcement activities, with a particular focus on individual rights, and (2) share information and ideas on how to ensure web-based service providers are held accountable for their conduct. The Digital Clearing House could, among other tasks, discuss the legal regime for pursuing specific cases or complaints related to online services, identify potential opportunities to raise awareness at the European level, and assess the impact of sanctions and remedies on individuals’ digital rights and interests.
- An EU values-based common area on the web. According to the EDPS, EU institutions should, with the help of external experts, explore the creation of a common area on the web where individuals are able to interact without being tracked, in line with the EU Charter of Fundamental Rights (the “EU Charter”). In addition, EU institutions should also encourage the development and application of technical solutions to respect individuals’ expresses preferences with respect to privacy.
- Improve representation of the individual’s interest in big data mergers. The EDPS supports greater scrutiny of proposed acquisitions of digital companies that have gathered significant quantities of personal data. In addition, according to the EDPS, Council Regulation No. 139/2004 of January 2004, on the control of concentrations between undertakings, should be interpreted and amended in the future to protect the rights to privacy, data protection and freedom of expression online as provided for in the EU Charter.