FC: EU Data Directive restricts search engines, speech, by J.Palme

[Declan McCullagh <declan () well com>]

********
Jacob has done some important work in this area. His essay below is very 
much worth reading, especially by knee-jerk believers in so-called privacy 
regulations that will harm consumers and imperil free speech. His other 
articles:
  http://www.politechbot.com/cgi-bin/politech.cgi?name=palme

-Declan
********

Date: Thu, 30 Nov 2000 19:21:36 +0800
To: declan () well com
From: Jacob Palme <jpalme () dsv su se>
Subject: Concerns Regarding the EU Data Directive

This document in web format with links to related documents:
http://dsv.su.se/jpalme/society/eu-data-directive-revision.html

                              Concerns Regarding
                             the EU Data Directive

The EU Data Directive, and the Swedish law based on the Data Directive, has
raised concerns in Sweden. The Directive has been seen as a serious
infringement in the freedom of speech as supposedly protected by the Swedish
constitution.

The Commission of the European Communities (CEC) have recently asked member
countries to comment on the experience with this law. This means that now is
the time when there is a chance to change this anti-democratic directive.

Unfortunately, these freedom of speech concerns have not been raised in any
other country than Sweden. If you read this, and if you live in another EU
country than Sweden, please write to the ministry of Justice in your country,
and say that you also have concerns and want the directive to be thoroughly
revised.

                               Short Summary of
                             the EU Data Directive

The EU Data Directive specifies that any storage (on a computer, or even by
pen and pencil) about any directly or indirectly identifiable person is
"personal data". Such registration is only permitted for specified, explicit
and legitimate purposes, in adequate ways, kept up to date, kept in an
identifiable format. It is also only permitted with permission from the person
identified, or for legally required needs without such permission.

Personal data may not be exported outside EU without permission from the
person identified.

Exceptions: Registration by the public defense, purely private registration
within a household, registration done by authors, writers and artists solely
as part of their professional work.

                         Short Summary of the Concerns

Interpreted literally, the EU directive means that almost all publication on
the Internet is illegal. Only publication where no person is identified in any
way is not covered by the law. Since publication on the Internet is a very
important part of freedom of speech, this law severely restricts the freedom
of speech.

The law is so generally worded, that it actually applies to almost all human
activity, since almost all human activity to some extent involves personal
data in computers or on paper. Thus, the law makes almost all human activity
illegal, unless it is done according to the restrictive rules of the law.

The exceptions for authors, journalists and artists are not enough, since
freedom of speech is not a right restricted to only people of these special
vocations.

Examples of Activities which are Illegal According to the Act:

   o   Search engines like Alta Vista.
   o   Any criticism of a person without permission from the criticsed person,
       like for example criticism of a public official.

              Examples of how the Act has been Applied in Sweden

The Swedish Data Inspection Board has in general interpreted the law in such a
way that it allows all activities which it likes, but disallows all activities
which it dislike. Examples of web pages which have been forbidden by the board
are:

   o   A list of fur producers kept by an animal-rights organisation.
   o   A list of bank directors, criticised for misuse of their rights by an
       organisation for bank customers.

                      How should the Directive be Changed

The general view in Sweden is that it is not enough to make slight changes in
the directive. The whole directive should be rewritten. Instead of making
almost all human activity illegal, the directive should specify a list of
typical understood kinds of data bases, to which it applies, and only be
applied to those. The main problem with the directive is that it applies
to so many things which the lawmakers did not understand when they
wrote the directive. Directives with serious risks for infringement
in freedom of speech should be restrictive, not general-purpose!

Examples of items in such a list in a new directive might be:

   o   Personnell data bases
   o   Medical patient data bases
   o   Customer data bases
   o   Police data bases
   o   Direct marketing data bases

There should also be a procedure for extending this list, when needed. Because
of the risk of conflict with freedom of speech, the directive should be
restricted and not general-purpose.

                          How to Change the Directive

The Commission of the European Communities (CEC) has asked member countries to
comments on experience with the act. However, these comments will probably
mostly be supplied and handled by people who have a vested interest in the
existing directive. To get the directive changed, public opinion must be made
aware of the problem. Write to newspapers, media, and to the department of
justice in your country!

                                 More Info

Freedom of speech and the EU Data Directive at URL
http://www.dsv.su.se/jpalme/society/eu-data-directive-freedom.html

Swedish attempts to regulate the Internet at URL
http://dsv.su.se/jpalme/society/swedish-attempts.html

The Swedish personal register law: http://dsv.su.se/jpalme/society/personal-
register-law.html

[7] History of the COM Computer Conferencing system,
http://dsv.su.se/jpalme/s1/history-of-KOM.html

                          Swedish-Language References

The laws in the reference list have URLs to their Swedish-language text.
[1] Swedish constitution on freedom of speech, Regeringsformen,
http://www.notisum.se/rnp/sls/lag/19740152.HTM
[2] Swedish constitution on public documents, Tryckfrihetsförordningen,
http://www.notisum.se/rnp/sls/lag/19490105.HTM chapter 2.
[3] Libel (slander), racial agitation, etc. in Brottsbalken,
http://www.notisum.se/rnp/sls/lag/19620700.HTM
[4] Copyright act, http://www.notisum.se/rnp/sls/lag/19600729.HTM
[5] Data act, http://www.notisum.se/rnp/sls/lag/19730289.HTM
[6] BBS act,http://www.notisum.se/rnp/sls/lag/19980112.HTM

This document in web format with links to related documents:
http://dsv.su.se/jpalme/society/eu-data-directive-revision.html

[Duplicate info snipped, an apparent copy and paste error. --DBM]

--
Jacob Palme <jpalme () dsv su se> (Stockholm University and KTH)
for more info see URL: http://www.dsv.su.se/jpalme/




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