Article 29 Data Protection Working Party Adopts Strict Position on Geolocation Services
The Article 29 Data Protection Working Party (Working Party) issued an opinion on geolocation services on smart mobile devices on 16 May 2011. The opinion seeks to specifically clarify the legal requirements for GPS, GSM base stations and WiFi data under the Data Protection Directive. The Working Party’s opinions are not strictly binding but are in practice followed.
The Working Party has adopted the position that as geolocation data from smart mobile devices reveal intimate details about the private life of their owner, it must be considered personal data for the purposes of the Data Protection Directive. The Working Party believes that the Data Protection Directive should apply in all cases where personal data are being processed as a result of the processing of location data. In the view of the Working Party, the Directive on Privacy and Electronic Communications should only apply to the processing of base station data by public electronic communication services and networks.
The Working Party identified three different functionalities in the context of the provision of geolocation services, (i) the controller of a geolocation infrastructure; (ii) the provider of a specific geolocation service; and (iii) the developer of the operating system of a smart mobile device, all of which have different responsibilities for the processing of personal data.
The Working Party has concluded that in most cases, geolocation data may only be processed with users’ prior consent and must also ensure the customer is informed about the terms of such processing. The Working Party notes that geolocation services switched on by default should not be mistaken for freely given consent. In addition, the Working Party has adopted the position that such consent cannot be obtained by opt-out mechanisms or by mandatory acceptance of general terms and conditions. The Working Party is of the view that users should be required to renew their consent at least once a year.
The opinion confirms the views expressed by the European Data Protection Supervisor in relation to geolocation data.
You can view the opinion here http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2011/wp185_en.pdf
