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Regulating the Dynamic Concept of Non-Personal Data in the EU: journal article

From Ownership to Portability

Laura Somaini

European Data Protection Law Review, Volume 6 (2020), Issue 1, Page 84 - 93

The article explores the dynamic concept of non-personal data and the regulatory approaches within the EU legal framework. De lege lata, this article critically assesses the issues arising from Regulation (EU) 2018/1807 on the framework on the free flow of non-personal data, focusing on the definition of non-personal data and the data porting principle. While the legislator’s shift from ownership to control is endorsed, the relevance of a framework targeting solely non-personal data is questioned in light of data protection concerns. De lege ferenda, this article submits that a comprehensive approach should broadly consider overcoming binary data categorisations. For the purposes of the FFD Regulation’s evaluation, evidence-based reflections are suggested. Keywords: non-personal data; free flow of data; GDPR; data portability; data ownership

The Data-Laundromat? journal article open-access

Public-Private-Partnerships and Publicly Available Data in the Area of Law Enforcement

Thilo Gottschalk

European Data Protection Law Review, Volume 6 (2020), Issue 1, Page 21 - 40

Law enforcement increasingly relies on complex machine learning approaches to support investigations. With limited knowledge and funding LEAs often depend on opaque private-public collaborations. Failure to provide legal bases on the national level paired with shortcomings both in the GDPR and Directive EU-2016/680 (LED) result in severe risks for fundamental rights of EU citizens. To overcome these risks an interdisciplinary discussion is required. This paper hence sheds light on technical challenges and misconceptions as well as legal shortcomings to foster a common understanding of the challenges to find out how they might be addressed. To do so, the author searches for common ground of ‘public availability’ and reviews currently used technical approaches and common processing constellations. Based on the outcomes, the author proposes a change in the LED and discusses a centralised institution to govern access to novel data driven technology. Keywords: law enforcement; public-private partnership; data protection; GDPR; LED

The Right to Explanation under the Right of Access to Personal Data: journal article

Legal Foundations in and Beyond the GDPR

Diana Dimitrova

European Data Protection Law Review, Volume 6 (2020), Issue 2, Page 211 - 230

The present article sets out to contribute to the discussion on the right to explanation of (automated) decisions and profiles by examining it in light of the right to access to one’s personal data. To that end it explores the right of access and explanation obligations beyond the GDPR by focusing also on Directive 2016/680, the CJEU case law, CoE Convention 108+ and ECtHR case law. The paper argues that whereas the right to know the reasoning and criteria underlying a decision could be derived from the right of access, this is less explicit in the case-law of the CJEU as compared to the ECtHR and Convention 108+. The discussion also points to the necessity of clarifying the relationship between and boundaries of data protection rights and other areas of law, eg the right to effective remedy and the obligation to state reasons for decisions. Keywords: right to explanation, right of access, GDPR, data rotection

Fundamental Rights, the Normative Keystone of DPIA journal article

Dara Hallinan, Nicholas Martin

European Data Protection Law Review, Volume 6 (2020), Issue 2, Page 178 - 193

The General Data Protection Regulation mandates that data controllers conduct a Data Protection Impact Assessment (DPIA) for certain processing activities. The core of the substance of the DPIA obligation requires that data controllers engage in ‘an assessment of the risks to the rights and freedoms of data subjects [posed by the processing operation]’. A common interpretation has emerged that this obligation only requires data controllers to engage in a ‘compliance assessment’: an assessment of the risks of processing considering the concrete provisions of the GDPR. This article takes issue with this interpretation and offers an elaborated conceptual argument supporting the following, alternative, position: the obligation that the DPIA risk assessment process include ‘an assessment of the risks to the rights and freedoms of data subjects’ requires data controllers to take the complete catalogue of rights and freedoms, outlined in foundational European fundamental rights instruments, as the key normative reference point for the DPIA risk assessment process. Keywords: data protection, privacy, GDPR, data protection impact assessment, DPIA, fundamental rights

Codes of (Mis)conduct? An Appraisal of Articles 40-41 GDPR in View of the 1995 Data Protection Directive and Its Shortcomings journal article

Carl Vander Maelen

European Data Protection Law Review, Volume 6 (2020), Issue 2, Page 231 - 242

The EU increasingly integrates alternative regulatory instruments (ARIs) in legislation, encouraging private stakeholder participation in the implementation and enforcement processes of those hard law instruments. Articles 40 and 41 GDPR are an example thereof, stipulating that bodies representing categories of controllers or processors should develop codes of conduct to specify the concrete application of the GDPR’s principles, rights and obligations. This article first analyses the legislative predecessor to these articles: Article 27 of the Data Protection Directive (DPD). Available information concludes that both the so-called ‘Community codes’ and national codes under this provision failed to make their desired impact. Second, this contribution inspects the key objectives, as well as the material and formal content of Articles 40 and 41 GDPR to identify similarities and differences between the DPD and the GDPR. Preliminary and cautious predictions are offered on whether GDPR codes of conduct will chart a more successful course. Keywords: codes of conduct, GDPR, 1995 Data Protection Directive, Articles 40-41 GDPR, co-regulation