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The GDPR is extremely easy to understand. I respectfully disagree. And I write that not only as a very experienced developer but also as a director who has bee
by Silhouette 3y ago
The GDPR is extremely easy to understand.
I respectfully disagree. And I write that not only as a very experienced developer but also as a director who has been legally responsible for GDPR compliance in more than one relatively small organisation.
The GDPR in its official format in English is 88 printed pages. It contains 173 introductory paragraphs followed by 99 specific Articles some of which span multiple pages by themselves. As is customary for legislation made at EU level a lot of the provisions are written more as statements of intent with considerable ambiguity about concrete implementation that is left to regulators or courts to clarify.
The specific legal basis of "legitimate interests" and the overarching obligations to collect and process data only where it is reasonably necessary are good examples of this openness to interpretation. And yet much of the data processing that most of us would probably agree is reasonable relies on the legitimate interests basis for its lawfulness. Several enforcement actions by regulators have already been brought against data controllers who apparently believed they were acting in compliance but were still found to be infringing the general principles around necessity and proportionality.
I contend that any legal document running to nearly 100 printed pages of densely printed text cannot credibly be described as "easy to understand". Indeed I must have read hundreds more pages of analysis and discussion by legal scholars, professional data protection officers and other experts and there have been plenty of disagreements over interpretation or sometimes outright contradictions between those papers.
Of course the only things that actually matter are the actions of the regulators or other official bodies that interpret the regulations and potentially sanction those who infringe them in specific cases. That means we also have to consider the stated opinions and actions to date of all the different national regulatory authorities and the outcomes of the cases that have been formally considered and resolved so far. And once again it is clear that even among the national regulators who are responsible for the interpretation and implementation of the rules there can be considerable disagreements about how the rules should be interpreted and sometimes which cases should be brought at all.
Now I don't necessarily disagree with some of those outcomes but I do think that if a data controller honestly believed their prohibited actions were in compliance and was subsequently penalised and required to make changes then evidently there is a problem with how accessible/understandable the rules are and those rules demonstrably failed to prevent the unwanted behaviours in those cases until the regulators did take action.
- _cenw 3y agoI will take your point, but I'd say you also need to account for how the GDPR has been enforced to this point. I regularly submit complaints to supervisory authorities and I've been employed by a few companies that regularly have meetings with their local SAs for guidance regarding potential pitfalls. Most enforcement is directed towards total disregard of the GDPR. Data that hasn't been properly deleted after requests, requests that go unanswered, and entities like Meta who think their legitimate interest towers over protected categories of information (i.e. allowing microtargeting based on health). Companies also get away with a lot of easy to see violations (i.e. I've complained about Microsoft doing dark patterns to obscure whether agreeing to data collection is a requirement for a service to work). Usually you'll be fine if you understand the basic framework and intent. And I'm not sure how you get to 88 pages. It comes out to 68 pages with very generous margins and a line-height of 22pt on A4 for me.[1] (also, all EU law, including translated judgements, is canonical in all member state languages, FYI) [1]: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:02016R0679-20160504&qid=1688752895008 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...
- Silhouette 3y agoI will take your point, but I'd say you also need to account for how the GDPR has been enforced to this point. ... Most enforcement is directed towards total disregard of the GDPR. I agree this is true. And at least here in the UK the regulators appear to be acting in good faith and according to the spirit of the law. However I don't like the principle that not enforcing a bad rule somehow makes it better. If something doesn't need to be enforced then it doesn't need to be a rule at all. Then it can't be selectively and possibly punitively enforced against someone the authorities take a dislike to or simply because of a bureaucratic mistake caused by incompetence rather than malice. Moreover having rules that are rarely enforced effectively penalises those who do make a good faith effort to comply but probably would not have suffered any ill effects if they had not done so. They're being penalised by paying extra compliance costs for trying to do "the right thing" and that doesn't seem like a good idea to me. In a business context it is literally giving a direct financial advantage to competitors who bend or outright ignore the rules and get away with it. And I'm not sure how you get to 88 pages. Official PDF: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELE...