The EU's Article 29 Working Party has published an advice paper on essential elements of a definition and a provision on profiling within the EU General Data Protection Regulation. Article 20 of the draft Regulation, in the form proposed by the European Commission in January 2012, seeks to limit the extent to which data subjects may be subjected to measures based on the automated personal profiling of individuals, and prohibits such profiling except in certain circumstances. However, as already stated in its opinion on the draft Regulation from March 2012 (see Legal update, Article 29 Data Protection Working Party opinion on data protection reform proposals), the Working Party believes that more must be done to explain and mitigate the various risks that profiling can pose. In particular, the Working Party proposes that a definition of the term "profiling" should be included in the Regulation and that Article 20 should focus on the collection of data for the creation and use of profiles rather than merely on the outcome of profiling. The Working Party also suggests a need for greater transparency to make data subjects aware that their personal data is used for the purposes of profiling. It supports the approach that profiling should be subject to the data subject's explicit consent. With this document, the Working Party has aligned itself with the position set out in the draft opinion of the European Parliament's Civil Liberties, Justice and Home Affairs Committee that rapporteur Jan Albrecht MEP proposed in January 2013 (see Legal update, European Parliament rapporteurs publish draft reports on data protection reform proposals). Given the importance of profiling for the serving of online behavioural advertising, which forms an essential part of the revenue strategy of many online services, online businesses are likely to be critical of the Working Party's advice. With the European Parliament and the Council poised to commence negotiations on the draft Regulation after the summer break, it remains to be seen whether the institutions can reach a compromise on this issue.

Source: Article 29 Working Party advice paper, 13 May 2013.