Direito e Informação na Sociedade em Rede: atas Direito e Informação na Sociedade em Rede: atas | Page 62

To tell the truth, the prospects of the EU data protection reform have not been entirely uncontroversial. Reservations have been voiced that data protection laws can be “practically enforced in the transnational, borderless, information-dense world the internet has now created” (Danagher, 2012). Specifically, while the option for a regulation to replace the DPD was greeted as a progress in harmonization within the EU12, doubts were expressed that a separate legal instrument, the proposed Directive of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data by Competent Authorities for the Purposes of Prevention, Investigation, Detection or Prosecution of Criminal Offenses or the Execution of Criminal Penalties, and the Free Movement of Such Data (so-called “law enforcement” or “police directive”)13 has been chosen to rule the processing of personal data in the police and judicial sectors with a much lower level of protection (Gonçalves, Jesus, 2013, p. 255 ff)14. Two major arguments were advanced in this respect. Firstly, a single EU legal instrument, preferably a regulation, would have been more appropriate for the fundamental right to personal data protection to be fulfilled, since it would give more guarantees to citizens (Blas, 2009, p. 225 ff)15. Secondly, in opting to address data protection in the security realm by the means of a special regime, and a directive instead of a regulation, the EC contradicted the comprehensive approach of its Communication, which had paved the way for the reform16. Indeed, the importance of a unified regime in this domain looks clearer in the present big data age. Big data has been defined as “large, diverse, complex, longitudinal, and/or distributed datasets generated from instruments, sensors, Internet transactions, email, video, click streams and/or all other digital sources available today and in the future.” “The EDPS supports the proposal because it is based on the correct choice of legal instrument, a regulation.” European Data Protection Supervisor, 2012 Annual Report: Smart, sustainable, inclusive Europe: only with stronger and more effective data protection, Publications Office of the European Union, 2013, 50. See also European Data Protection Supervisor, Opinion on Data Protection Reform Package, 7 March 2012, p. 7-8. Available at: (last accessed 18.03.2016). 13 Proposal for a Directive of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data by Competent Authorities for the Purposes of Prevention, Investigation, Detection or Prosecution of Criminal Offenses or the Execution of Criminal Penalties, and the Free Movement of Such Data, COM (2012) 10 final, 25th January 2012. See the Council’s compromise text, of 2 October 2015. Available at (last accessed 18.03.2016). 14 Article 29 Data Protection Working Party, Opinion 01/2012 on the Data Protection Reform Proposals, 23 March 2012, p. 4. Available at: ; European Data Protection Supervisor, 2012 Annual Report…, p. 16. 15.In the view of the EDPS, for example, “In the area of data protection a Regulation is all the more justified, since Article 16 TFEU has upgraded the right to the protection of personal data to the Treaty level and envisages or even mandates a uniform level of protection of individual throughout the EU.” European Data Protection Supervisor, Opinion on the Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: ‘A Comprehensive Approach on Personal Data Protection in the European Union’, p. 9, 11-26. 16 Communication to the European Parliament, the Council, The European Economic and Social Committee and the Committee of the Regions: “Delivering an Area of Freedom, Security and Justice for Europe’s Citizens, Action Plan Implementing the Stockholm Programme”, COM (2010) 171 final, 20.4.2010, p. 3. 12 50