Opinion 15/2011 on the definition of consent

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Article 29 Working Party Opines on Consent Requirements

Article 29 Working Party Opines on Consent Requirements
On July 13, 2011, the Article 29 Working Party (the “Working Party”), adopted an Opinion on the concept of consent as a legal basis for processing personal data, which includes recommendations for improving the concept in the context of the ongoing review of the EU data protection framework. The Opinion also analyzes the conditions for valid consent under EU data protection law (that consent must be “freely given,” “specific,” “unambiguous,” “explicit,” “informed,” etc.), and clarifies the obligations of data controllers seeking consent. In addition, the Opinion provides examples of valid and invalid consent with respect to company social media, medical research, body scanners, PNR data and online gaming.

Below are some of the Working Party’s key conclusions:
•Only statements or actions that indicate the data subject’s agreement constitute valid consent. Mere silence or inaction (opt-out) typically will not be viewed as valid consent, especially in an online context. For example, default privacy settings used by online social networks, default Internet browser settings or pre-ticked boxes do not qualify as valid consent.
•Consent must be given prior to the data processing, after providing notice to the data subject. The notice should be provided in clear and understandable language.
•In an employment context – where there may be an element of coercion – careful assessment is required to determine whether employees are free to consent.
•From an accountability perspective, data controllers should implement mechanisms to prove that they have obtained data subjects’ valid consent.
•Reliance on consent does not relieve data controllers of their obligation to comply with other EU data protection requirements for lawful processing of personal data, such as the principle of proportionality.
•If a data subject withdraws his or her consent, the data controller must delete any personal data pertaining to the data subject unless there is another legal basis that justifies continued storage of the data.
•A revised data protection framework should include specific provisions concerning the protection of minors, such as requiring online age verification mechanisms and information that is understandable to children. Consent should not provide a basis for targeting underage consumers in the context of online behavioral advertising.
•The Working Party believes that it not necessary to include a general requirement for “explicit” consent in the revised EU data protection framework, and takes the position that, in most cases, data controllers should be able to obtain consent quickly and in a user-friendly manner. The Working Party does, however, favor the introduction of a specific provision regarding the right to withdraw consent.

Kaynak: http://www.huntonprivacyblog.com/2011/07/articles/european-union-1/article-29-working-party-opines-on-consent-requirements/

Juror Privacy Issue Sparks Debate

RALEIGH Two high-profile murder cases have given jurors and potential jurors in Wake County a lingering case of the jitters.

Donald Stephens, the senior chief resident superior court judge, responded by issuing a blanket administrative order sealing juror addresses, phone numbers and questionnaires containing private information.

That drew scorn from public records advocates and media lawyers, who say it violates the constitution and jeopardizes the openness of judicial proceedings.

In two recent murder cases that were broadcast live from the courtroom, jurors have voiced concerns about being dragged into the spotlight and about details of their private lives becoming public.

The judge said he worried that jurors would not give their full attention to a case if they were apprehensive about possible encounters with the media or family of victims or defendants after the trial.

"I'm just exercising the authority of the court to create an environment in which jurors can do their job," Stephens said.

He entered the order in early June, shortly after jury selection began in the murder trial of Jason Young, who was accused of killing his wife.

Prosecutors and defense lawyers had issued all jury pool members a questionnaire that delved into each person's experiences with infidelity, an important issue in the case. Some expressed concerns about their responses being used against them elsewhere.

That case ended in a mistrial, but as it neared conclusion, jurors told court officials they were worried about being rushed by TV camera crews and others after deliberations.

Jurors also had fears during the spring murder trial of Brad Cooper, also accused of killing his wife, in a page-turner case that attracted an opinionated group of bloggers, tweeters and curious spectators. Members of the jury complained that people in the courtroom gallery were staring at them and making disturbing eye contact.

Stephens said his order was prompted by more than the Cooper and Young trials. In recent years, jurors have been asking more and more about their rights in the judicial process, a national trend that has been posing thorny legal questions over the past decade.

Though Stephens typically lets cameras into his courtrooms so the public can witness legal proceedings and have a fuller understanding of a verdict when it comes, lawyers for media organizations have criticized his order as limiting public access to legal proceedings that should be open.

Identifying information about jurors is important, public records advocates say, to maintain open courts set up in the Constitution.

"The records of North Carolina's courts - including information about jurors - are public, both under the public records law and under a specific statute that governs court records," said Amanda Martin, general counsel for the N.C. Press Association.

Steven Zansberg, a lawyer in Denver who explores the effects of digital media on the courts with the New Media Project, has kept tabs on the issue for years.

In 2000, he wrote about the clash between the rights of the public and press to information about jurors and jurors' rights to privacy.

At that time, courts and legislatures in at least eight states had considered measures to limit the disclosure of jurors' names and addresses. Some increased the use of anonymous juries.

Zansberg supports taking up each concern on a case-by-case basis.


OECD Leaders Split on Web's Future

An OECD debate in Paris on internet governance has thrown up conflicting visions of the future, with politicians and consumer groups disputing key issues on web openness and freedoms.

The OECD meeting painted in sharp relief the diverse interest groups at stake, with officials clashing over web freedoms.

The EU and Civil Society Information Society Advisory Council (CSISAC) said they wanted to continue to promote freedom online, concepts that went against the ethos of the main document under discussion - OECD Communiqué on Internet Policy-making principles.

The EU underlined its commitment to an open internet, criticising corporate and governmental processes that could restrict internet development.
“There are pressures – regulatory, political, and economic – to fragment the internet, often along national borders," said Neelie Kroes, vice president of the European Commission responsible for the digital agenda.

"Sometimes this results from legitimate concerns, like personal data protection; sometimes it is just plain censorship.

“But the internet's most important characteristic is its universality, where, in principle, every node can communicate with every other. We must safeguard this.”

However, the OECD proposals, and Kroes, supported a multi-stakeholder approach that aimed to protect copyright holders from internet piracy.

The outlined methods for protecting rights holders came under criticism from CSISAC, which refused to endorse the OECD's proposals despite playing a role in drawing them up.

ISP responsibility

“CSISAC was not able to accept the final draft’s over-emphasis on intellectual property enforcement at the expense of fundamental freedoms," the group said before criticising plans to make ISPs more responsible for content.

“The final Communiqué advises OECD countries to adopt policy and legal frameworks that make internet intermediaries responsible for taking lawful steps to deter copyright infringement," CSISAC said.

"This approach could create incentives for internet intermediaries to delete or block contested content, and lead to network filtering."

CSISAS also railed against the idea of cutting off internet access, as outlined in the OECD's proposal and the Digital Economy Act in Britain.

“Internet intermediaries could voluntarily adopt “graduated response” policies under which internet users’ access could be terminated based solely on repeated allegations of infringement,” the council said.

“CSISAC believes that these measures contradict international and European human rights law.”

Read more: OECD leaders split on web's future | News | PC Pro http://www.pcpro.co.uk/news/368332/oecd-leaders-split-on-webs-future#ixzz1QssDBin5