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The pre-GDPR regime – PART II

by Dr Edric Micallef Figallo – Associate

The following is the third article in a series of articles delving into the GDPR, intended to give an overview of the main aspects of the provisions it introduced, retained and updated in the data privacy law regime of the European Union, and its legislative implementation in Malta. The previous article may be viewed here.

In Part I of this article we made reference to the Directive which preceded the GDPR and in turn the predecessors thereof. We had highlighted that the Directive was preceded on an international level by the Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data (hereinafter, “Guidelines”, found here) of the Organisation for Economic Co-operation and Development (OECD), adopted on the 23rd September 1980. As was written the principles laid therein were central to the Directive and retain centrality as regards the GDPR as well. These principles related to:

1. Collection limitation;
2. Data quality;
3. Purpose specification;
4. Use limitation;
5. Security safeguards;
6. Openness;
7. Individual Participation; and
8. Accountability.

Said principles were in fact considered “basic principles of national application”, essentially meaning that the contracting parties had to apply them for data processing occurring domestically (as distinct from other “basic principles of international application” which related to international data flows). We shall now refer to the above listed principles as they were understood in said Guidelines.

1. Collection limitation

Paragraph 7 of the Guidelines provided that “There should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data.”

2. Data quality

Paragraph 8 of the Guidelines provided that “Personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be accurate, complete and kept up-to-date.”

3. Purpose specification

Paragraph 9 of the Guidelines provided that “The purposes for which personal data are collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfilment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose.”

4. Use limitation

Paragraph 10 of the Guidelines provided that “Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with Paragraph 9 except:
• a) with the consent of the data subject; or
• b) by the authority of law.”

5. Security safeguards

Paragraph 11 of the Guidelines provided that “Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorised access, destruction, use, modification or disclosure of data.”

6. Openness

Paragraph 12 of the Guidelines provided that “There should be a general policy of openness about developments, practices and policies with respect to personal data. Means should be readily available of establishing the existence and nature of personal data, and the main purposes of their use, as well as the identity and usual residence of the data controller.”

7. Individual Participation

Paragraph 13 of the Guidelines provided that:

“An individual should have the right:
• a) to obtain from a data controller, or otherwise, confirmation of whether or not the data controller has data relating to him;
• b) to have communicated to him, data relating to him within a reasonable time;
at a charge, if any, that is not excessive;
in a reasonable manner; and
in a form that is readily intelligible to him;
• c) to be given reasons if a request made under subparagraphs(a) and (b) is denied, and to be able to challenge such denial; and
• d) to challenge data relating to him and, if the challenge is successful to have the data erased, rectified, completed or amended.”

8. Accountability

Paragraph 14 of the Guidelines provided that “A data controller should be accountable for complying with measures which give effect to the principles stated above.”

Conclusion

In conclusion, while the article and this series cannot delve into greater details on the Guidelines, the article refers to the original guidelines dated 1980. In actual fact, the Guidelines, as subsequently amended, are still a valid OECD instrument.

Notwithstanding the non-binding nature of the Recommendation by which they were introduced, reference to the original Guidelines serves a twofold purpose: It (i) it highlights the historico-legal basis of principles which are still central and fundamental to the GDPR, notwithstanding any changes or adaptations; and (ii) it highlights that respect towards such principles is not a GDPR innovation and, given the (justified) hype surrounding the GDPR, it is evidence of a culture which was lacking in the adequate consideration of the fundamental right to privacy.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Edric Micallef Figallo on edric@abalegal.eu.