[Gnso-epdp-team] European Commission comments on Phase 1 report
Volker Greimann
vgreimann at key-systems.net
Thu Apr 18 14:37:27 UTC 2019
Dear fellow members,
the European Commission just provided very valuable and constructive
insights into our reports that we would be well-advised to take into
account in Phase 2:
https://mm.icann.org/pipermail/comments-epdp-recs-04mar19/attachments/20190417/6f0a65b2/CommentsontheTemporarySpecificationforgTLDRegistrationDataPolicyRecommendations-0001.pdf
"/The European Commission recognises this (the recommendation of
purposes and association with processing activities) as a *long due and
important step forward* in the ongoing reform of the WHOIS system.
//Having a clear definition of the purposes for the processing of the
data in the WHOIS system is an *essential pre-requisite* for ensuring a
GDPR-compliant system./"
"/the overall model would benefit from *making even more explicit the
links between the purposes for processing personal data and the specific
processing activity(ies) as well as the specific personal data items.*/"
"/Accordingly, the European Commission considers that *the purposes* for
processing WHOIS personal data by ICANN and/or the contracted parties
*should not include enabling access by third parties*. This is also at
the core of the concerns expressed for some time by the DPAs and the
European Data Protection Board (EDPB), which have clarified that the
purposes of ICANN and contracted parties must *not be conflated with the
interests of third parties* in accessing registration data./"
"/Notwithstanding the above, the European Commission would like to
acknowledge that maintaining such a distinction does not per se limit
WHOIS data access by/disclosure to third parties, but merely
differentiates between*ICANN’s own purposes* (e.g. maintaining the
security, stability and resilience of the Domain Name System) which are
capable of justifying collection of the data in the first place, and
subsequent processing (enabling access to and disclosing WHOIS data) for
legitimate purposes pursued by third parties./"
"/In the Report, Article 6(1) (f) of the GDPR is often invoked. The
European Commission would like to recall that legitimate interest is one
of the six possible legal bases provided under the GDPR1. (...)
Specifically, the legitimate interest*needs to outweigh* the interest of
the individual concerned. Given that there is an interference with the
fundamental right to data protection of an individual, a balancing of
interests is necessary to properly justify the reasons for such an
interference. (...) The *balancing is *thus *a responsibility* (*not a
prerogative*) of the data controller./"
"/*Third parties seeking access also need a legal basis for processing
the data*. For instance, an IPR rightholder might have a legitimate
interest to gain access to WHOIS personal data in order to ensure
his/her IP right is protected and not abused. The existence of *such a
right needs to be substantiated and the necessity/proportionality of
accessing that data ascertained*. This IPR rightholder might rely on
Art. 6(1) (f)./"
"/*GDPR legitimate interest cannot be used as a legal basis for data
processing by public authorities*/".
"/With regard to the various processing activities involved in the WHOIS
system, the issue of whether they involve an *international data
transfer *under the GDPR should be considered./ (...) it is also
necessary to identify *an appropriate legal ground *for the
international transfer"
"/the current situation is affecting EU Member State *authorities’
ability* to obtain legitimate access to this data, necessary to enforce
the law online, including in relation to the fight against cybercrime/"
All this seems to point in a very clear direction for our path ahead
with regard to the disclosure model we will be working on. More on that
when we get to this part of our deliberations.
--
Volker A. Greimann
General Counsel and Policy Manager
*KEY-SYSTEMS GMBH*
T: +49 6894 9396901
M: +49 6894 9396851
F: +49 6894 9396851
W: www.key-systems.net
Key-Systems GmbH is a company registered at the local court of
Saarbruecken, Germany with the registration no. HR B 18835
CEO: Alexander Siffrin
Part of the CentralNic Group PLC (LON: CNIC) a company registered in
England and Wales with company number 8576358.
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