Voluntary Compliance Commitment Tool for European General Data Protection Regulation

This chapter observes how it may be inappropriate to apply a single jurisdictional threshold to diverse instruments such as data privacy laws. In the light of this observation, a proposal is outlined for a ‘layered approach’ under which the substantive law rules of such instruments are broken up into different layers, with different jurisdictional thresholds applied to each such layer. This layered approach is discussed primarily as a technique to be utilized in legal drafting, but it may also be applied in the interpretation and application of legal rules. Article 3 of the European Union’s General Data Protection Regulation, which determines that regulation’s scope of application in a territorial sense, provides a particularly useful lens through which to approach this topic and, thus, the discussion is largely centred around that Article.

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The Risk-Based Approach to Data Protection

10.1093/oso/9780198837718.001.0001 ◽

2020 ◽

Author(s):

Raphaël Gellert

Keyword(s):

Risk Management ◽

Data Protection ◽

Personal Data ◽

Management Tools ◽

General Data Protection Regulation ◽

Regulation Theory ◽

Régulation Theory ◽

General Data ◽

Data Protection Law ◽

The Way

The main goal of this book is to provide an understanding of what is commonly referred to as “the risk-based approach to data protection”. An expression that came to the fore during the overhaul process of the EU’s General Data Protection Regulation (GDPR)—even though it can also be found in other statutes under different acceptations. At its core it consists in endowing the regulated organisation that process personal data with increased responsibility for complying with data protection mandates. Such increased compliance duties are performed through risk management tools. It addresses this topic from various perspectives. In framing the risk-based approach as the latest model of a series of regulation models, the book provides an analysis of data protection law from the perspective of regulation theory as well as risk and risk management literatures, and their mutual interlinkages. Further, it provides an overview of the policy developments that led to the adoption of such an approach, which it discusses in the light of regulation theory. It also includes various discussions pertaining to the risk-based approach’s scope and meaning, to the way it has been uptaken in statutes including key provisions such as accountability and data protection impact assessments, or to its potential and limitations. Finally, it analyses how the risk-based approach can be implemented in practice by providing technical analyses of various data protection risk management methodologies.

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