Advice paper on essential elements of a definition and a provision on profiling within the EU General Data Protection Regulation

The connection and linking of personal data to create profiles may have significant impacts on the basic right to data protection. Profiling enables a person’s personality or aspects of their personality – especially behaviour, interests and habits – to be determined, analyzed and predicted. In many cases this is done without the data subject’s knowledge. This is why data subjects can be treated with insufficient transparency and therefore may feel unable to exercise sufficient control over the processing of their personal data.

Profiling has found its way into many areas of life in the form of consumer profiles, movement profiles, user profiles and social profiles, for example. However, due to the widespread availability and possibility of linking data on the Internet and the fact that technical devices whose operation is based on the processing of personal data pervade our everyday lives, the online world can present one of the biggest challenges to the right to the protection of one’s personal data in the 21st century, considering, for example, the geo-location capabilities of mobile devices that most of us carry with us most of the time. Also, the back-drop of Big Data needs to be taken into account here.

As already stated in its Opinion 01/2012 on the data protection reform proposals (WP 191)1 the Working Party believes that more must be done to explain and mitigate the various risks that profiling can pose.

With respect to the ongoing legislative debate in the European Parliament and the Council the Working Party proposes the following essential elements for a definition and provision on profiling within the new EU data protection legal framework:

1. Proposal for a definition on profiling

In the light of the increasing usage of profiling technologies in the private and in the public sector and their possible impacts on the basic right to data protection, the Article 29 Working Party deems it is necessary to include a definition of profiling in Article 4 of the General Data Protection Regulation. This view is shared by the Rapporteur of the European Parliament for the General Data Protection Regulation, Jan Albrecht2.

Based on the 2010 Council of Europe Recommendation on profiling3 and the Commission’s wording in Article 20(1), the Working Party proposes the following definition:

“Profiling” means any form of automated processing of personal data, intended to analyse or predict the personality or certain personal aspects relating to a natural person, in particular the analysis and prediction of the person’s health, economic situation, performance at work, personal preferences or interests, reliability or behaviour, location or movements.
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