- Council of Europe says market research is not covered by recommendation on profiling
The Council of Europe has informed ESOMAR that market research surveys are not subject to the draft restrictions it is preparing on profiling techniques. This clarification obtained by ESOMAR means less administrative regulatory burden for researchers.
The aim of the Council of Europe recommendation is to ensure that the collection and processing of data in public and private sectors such as banking, insurance, health, police etc. or carried out with the help of a technique or technology such as smart cards, video surveillance or direct marketing, or relating to a particular category of data (sensitive, biometric, etc.) does not unfairly discriminate against an individual.
It is targeted at “the use of numerous technologies such as web bugs and cookies, which may be used in combination and which, by their very nature, make it possible to observe and trace individuals without their knowledge.”
Some of these techniques and technologies might sound very similar to techniques used by market, social and opinion research. This sector depends on representative samples for its accuracy and in order to maintain the efficiency and quality of samples, the industry regularly employs profiling techniques to identify possible respondents with particular characteristics who have the potential to be included in a representative sample of a population.
The Council of Europe had previously indicated to ESOMAR in June 2010 that statistical surveys fall outside the scope but as it gave no reason why, ESOMAR asked for clarification. The Strasbourg-based standard setting body has now specifically stated that: “the collection and processing of personal data with a view to setting up a sample or the collection and processing of personal data for statistical surveys or for the production of statistical results are not covered by the draft recommendation on profiling”.
The Council of Europe secretariat advised that such activities producing statistical results continue to be regulated by the Recommendation on the protection of personal data collected and processed for statistical purposes dating from 1997. Members of the Council of Europe have the choice to fully implement the 1997 recommendation and ESOMAR is considering further investigation of this.
Whilst not legally binding, Council of Europe recommendations have a strong influence on legislation introduced in all Council of Europe member states including within the EU.
- ESOMAR meets Belgian data privacy regulator to discuss data protection in market research
ESOMAR met with the President of the Belgian Privacy Commission, Willem Debeuckelaere on 11 August at the Belgian Privacy Commission's offices to discuss market researchers’ concerns about current international data protection reviews underway. FEBELMAR, the Belgian Federation of Market Research Institutes was included in the delegation.
Mr. Debeuckelaere currently has an important international role to play as Belgium holds the rotating presidency of the Council of the European Union. The Belgian Privacy Commission will hold a conference on 23 November in Brussels entitled “Privacy and Scientific Research”, which is the principal reason for the market research sector meeting with the regulator.
Up until now, market, social and opinion research have enjoyed protection within the category of “scientific and statistical research” which enables the sector to collect and store data with more freedom than other operators. In a recent consultation, the European Commission asked if this category should be more closely defined which has motivated ESOMAR to understand better how market research is perceived by regulators.
- Global experts including UK Deputy Information Commissioner will highlight the key challenges and the latest developments in protecting privacy in market, social and opinion research. Find out more at the ESOMAR Congress!
International experts on data privacy will talk about the future of privacy, highlighting current and upcoming issues in protecting personal data in market research on Wednesday 15 September at ESOMAR’s congress.
Speakers include David Smith, Deputy Information Commissioner and Director of Data Protection, UK who will talk about regional versus global approaches and the issues and challenges in protecting individual privacy rights in an increasingly global and connected world;
ESOMAR Professional Standards and Legal Committee member David Stark (Past President, MRIA, Canada) will review the latest developments in North America and Bruno Colin (Global Managing Director, Operations & IT, GfK) will give his perspective on how best to protect respondents’ privacy online.
According to Stark “Behavioural tracking, device fingerprinting, and the use of Flash cookies are hot issues. They are legitimate activities when implemented and managed responsibly and ethically. Transparency toward consumers and informed consent are critical to be onside with data privacy laws.”
Congress attendees will have the chance to pose their own questions in a panel discussion on the challenges and responsibilities for researchers in fulfilling their promise to protect and respect respondent privacy.
The panel, chaired by Adam Phillips, Chair of ESOMAR Professional Standards Committee and Legal Committees, will include the session speakers plus George Pappachen, Chief Privacy Officer at Kantar and Member of ESOMAR’s Legal Committee, who also follows up his Congress presentation “License to peek? A primer on data collection on digital platforms” from the previous day’s proceedings.
Link to Congress programme:
http://www.esomar.org/index.php/events-congress-2010-programme.html
Link to Future of Privacy congress session social network:
http://esomarcongress2010.crowdvine.com/talks/14056
- ESOMAR and EFAMRO visit European Commission to discuss
data protection rules review
ESOMAR called for a meeting with the European Commission because of the wide-ranging debate on the review of existing legislation. ESOMAR is concerned that the review could have a serious impact on the way in which market, social and opinion research is conducted particularly online.
The priorities raised at the meeting which took place on 20 July 2010 included highlighting that market research must be recognized as distinct from commercial communications such as direct marketing, a difference which is sometimes forgotten or misunderstood by regulators. Furthermore, possible redefinition in EU legislation of the consent by data subjects for use of their data was also addressed.
Further contacts with other regulators are planned in the coming months to protect and promote the sector’s interests.
- Market research sector warns EU against over-regulation
of respondent consent
ESOMAR jointly made its written submission with EFAMRO to follow up the recent comments made by Finn Raben at the stakeholder hearing of 1 July 2010. The submission highlighted 6 out of the 60 questions as being the most relevant for the research sector.
The Commission’s question proposing to ban online profiling of users garnered little support in the joint ESOMAR/EFAMRO submission as there is no generally accepted legal definition of ‘profiling’, and the unintended consequence of a broad definition in forthcoming legislation is that many research activities could be included even though they don’t have legal or significant effects on data subjects. There are many examples of profiling used in research, including some important European research projects which use statistical techniques for stratification to improve the quality of a sample. Banning profiling could affect significant research projects in future such as Eurobarometer and the Labour Force survey.
ESOMAR and EFAMRO also recommended the Commission to recognize that self-regulation in the market research profession has already effectively addressed the need to adequately protect respondents including children (under 14 according to the ESOMAR guideline) and therefore there is no need for a mandatory requirement for parental consent for contact with all individuals under 18.
The Commission is additionally considering whether to clarify certain terms of importance to market research, such as the exemptions for “statistical data collection” and “data for scientific purposes”. ESOMAR and EFAMRO do not see a need to clarify these terms which currently cover market research activities.
The proposal to change the current requirements for a data subject to ambiguously give his consent, towards providing explicit consent is not seen as necessary by market research which already puts the respondent in control and does not wish to confuse the respondent.
The industry submission also underlined that extra requirements for collection of personal data not directly collected from the data subject are not needed in legislation as the current exemptions for processing for statistical purposes or historical and scientific research work well.
The general tone of the majority of the 60 questions from the European Commission is restrictive, looking to increase rather than simplify the burden of data protection requirements on companies. The Commission has been criticized in many quarters for giving stakeholders less than three weeks to consult and respond on the 60 questions.
Joint response
- ESOMAR Director General participates in EU hearing on data
protection
Finn Raben, ESOMAR’s Director General participated in the international private stakeholder hearing on the future of the EU legal rules on data protection hosted by the European Commission (EC) on 1 July.
As part of the review, the EC posed 60 questions to structure the hearing, including the question “Is there a need to clarify the interpretation of "statistical data" and "data for scientific purposes"?
Under the current Directive, data held under these two categories enjoys certain exemptions although not all EU Member States have recognized market, social and opinion research as falling within these. Finn Raben pointed out the need for such exemptions to more clearly include market, social and opinion research, underlining the fact that private and public sector bodies depend on high quality research in their decision making.
Finn Raben also asked the Commission to note that online profiling techniques should not be regulated where they are used to guarantee high quality in market research and do not lead to a commercial or direct impact on the individual.
He also pointed out the danger of transforming the requirement of “unambiguous consent” into explicit consent and highlighted the fact that market, social and opinion research apply self-regulatory codes of conduct such as the ICC/ESOMAR International Code which is used in 17 EU Member States and 44 associations in 37 countries internationally.
To listen to the hearing, the recording is available until 31 July at:
- European Commission invites ESOMAR to a stakeholder hearing
on data protection
ESOMAR has been invited by the European Commission to a private stakeholder consultation on 1 July. This is a follow up to the public consultation launched in 2009 on the review of the data protection regulatory framework to which ESOMAR and EFAMRO submitted a joint response.
The Commission will talk about the state of play in revising the current legal framework and consult non-public sector stakeholders on a range of shortlisted issues relating to existing data protection rules. It is also expected to circulate a preparatory discussion non-paper before the hearing to highlight its priorities.
- Council of Europe recommendation on profiling techniques could
endanger the use of statistical segmentation techniques
The Council of Europe has developed a draft recommendation on the protection of individuals with regard to automatic processing of personal data in the context of profiling.
It appears that the aim of the recommendation is to protect consumers from unfair discriminatory practices or unwanted commercial approaches. However, because the definition of profiling is so broad, if adopted this recommendation could restrict the use of statistical segmentation techniques and impact the ability of researchers to identify representative samples both for sampling and for analysis purposes. This would make it much more difficult for the profession to conduct cost effective, timely, accurate and reliable research based on scientific sampling methods.
As the European Commission is closely following what has been issued by the Council of Europe and also because national data protection commissioners are also sitting in on these discussions, ESOMAR responded to ensure that the recommendation does not have unintended consequences for market research which could then spread into other legislation.
The Council of Europe has responded that it has considered ESOMAR’s position at its meeting on 1-4 June and says that the recommendation would not affect market, social and opinion research activities. ESOMAR has requested clarification and discussions are ongoing.
In January 2010, the ESOMAR Public Affairs Programme was launched to strengthen the association’s public affairs functions and to address international policy and legislative changes that affect the market, social and opinion research industry.
Our objective is to develop and promote an open and transparent public affairs programme to monitor, assess and influence EU and other international legislation impacting market, social and opinion research activities.
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