Bolkestein faces double-standards charge over ‘illegal’ data dealings

By Peter Chapman

Date: 01/04/04

INTERNAL Market Commissioner Frits Bolkestein has been accused of double standards by the world's biggest business lobby for holding up its efforts to make it easier to transfer data from Europe to the rest of the world while caving-in to American demands to hand over airline passenger records.

The Paris-based International Chamber of Commerce (ICC) has been working for three years to thrash-out a 'model contract' that companies could use to legally send data such as employee information or customer lists from Europe anywhere in the world, without falling foul of the Union's data- privacy rules.

The EU's data protection directive allows national data watchdogs to block transfers to third countries, including the US, lacking adequate controls on the way personal information is used.

The model contracts being worked on by the ICC would be signed by firms sending and receiving data and would automatically be given a clean bill of health.

Companies using the contracts would thus save the money they would have spent recruiting lawyers to ensure they comply with the law - and would be certain that their data gets through to its intended recipient without a hitch.

However, the ICC's lawyer, Christopher Kuner, says the Commission has dragged its feet approving the contracts, claiming the procedures did not give citizens enough protection.

Kuner, a partner with US firm Hunton and Williams, says this is a clear case of double standards, because Bolkestein has failed to stand up for data privacy in negotiations with the US on airline 'passenger name records' or PNR.

"The difference I notice with PNR, is that the Commission has always been willing to go the extra mile," said Kuner.

"It is not as committed on this as it is to turning data over to US law enforcement agencies - this is a bit hard to justify," he added.

Kuner said the ICC hoped to sort out a final deal in the coming weeks, although it has been asked to solve, at short notice, issues such as the conditions governing citizens' access to data.

The Commission has already published some model contracts on its web site, but Kuner said even EU executive officials admit these are not up to scratch.

The ICC contracts, he said, would be more workable for businesses without watering-down the protection they offer citizens.

For example, companies would be given more time to respond to demands for an audit of their data-protection procedures.

The model contracts would also get rid of the Commission's suggestion that data senders and receivers would face joint and several liability in the event that private information is misused. Under the new contracts, the liability would lie squarely with the party responsible.

Meanwhile, Kuner, a data-privacy expert, joined the chorus of critics who question Bolkestein's agreement with the US - a point made by MEPs in Strasbourg, who this week voted against the accord.

Member states, on the other hand, ratified his agreement, based on American pledges that they would not unduly infringe European passengers privacy.

Kuner said: "Much of this is a political judgement - to balance data protection against other interests. But in doing that you can't ride roughshod over data protection. In doing that you undermine the faith people have in it."

Bolkestein's spokesman Jonathan Todd said: "We have obviously demonstrated our good will [on the model contracts] in the past . . . and are willing to talk with these people to sort out their problems."

The Commission has negotiated a 'safe harbour' deal with the US setting out basic requirements that American firms importing data from the Union must abide by - so that they can be deemed to meet the terms of EU law.

However, experts say using model contracts is a better option for many companies handling data sent to the US.

The International Chamber of Commerce (ICC) has been working for three years to produce a 'model contract' that companies could use to legally send data, such as employee information or customer lists, from Europe to anywhere in the world, without contravening the European Union's rules on data protection. The ICC's lawyer has accused the European Commission of being slow to approve the contracts, claiming the procedures do not give citizens sufficient protection.

http://ec.europa.eu/comm/internal_market/privacy/index_en.htm http://ec.europa.eu/comm/internal_market/privacy/index_en.htm

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