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ENAR POLICY SEMINAR ON POSITIVE ACTION 29-30 November 2007

ENAR POLICY SEMINAR ON POSITIVE ACTION 29-30 November 2007. DATA COLLECTION AND POSITIVE ACTION OLIVIER DE SCHUTTER UNIVERSITY OF LOUVAIN AND COLLEGE OF EUROPE. DATA COLLECTION AS AN INSTRUMENT OF ANTIDISCRIMINATION POLICIES. DATA COLLECTION AND ANTIDISCRIMINATION POLICIES: THE STUDIES (1).

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ENAR POLICY SEMINAR ON POSITIVE ACTION 29-30 November 2007

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  1. ENAR POLICY SEMINAR ON POSITIVE ACTION29-30 November 2007 DATA COLLECTION AND POSITIVE ACTION OLIVIER DE SCHUTTER UNIVERSITY OF LOUVAIN AND COLLEGE OF EUROPE

  2. DATA COLLECTION AS AN INSTRUMENT OF ANTIDISCRIMINATION POLICIES

  3. DATA COLLECTION AND ANTIDISCRIMINATION POLICIES: THE STUDIES (1) • T. Makkonen, European Network of Legal Experts in the non-discrimination field, Measuring Discrimination – Data Collection and EU Equality Law, European Commission, DG for Employment, Social Affairs and Equal Opportunities (2007) • P. Simon (coord.), Comparative Study on the collection of data to measure the extent and impact of discrimination within the United States, Canada, Australia, Great-Britain and the Netherlands, Medis Project, European Commission, DG for Employment, Social Affairs and Equal Opportunities (2004)

  4. DATA COLLECTION AND ANTIDISCRIMINATION POLICIES: THE STUDIES (2) • N. Reuter, T. Makkonen and O. Oosi (eds), Study on Data Collection to measure the extent and impact of discrimination in Europe, European Commission, DG for Employment, Social Affairs and Equal Opportunities (December 2004) • E. Olli and B. K. Olsen (ed.), Towards Common Measures for Discrimination: Exploring Possibilities for Combining Existing Data for Measuring Ethnic Discrimination (November 2005), published by the Centre for Combating Ethnic Discrimination and Danish Institute of Human Rights, with the support of the European Community Action program to combat discrimination. • O. De Schutter and Julie Ringelheim, The Processing of Racial and Ethnic Data in antidiscrimination policies: Reconciling the Promotion of Equality with Privacy Rights, November 2007 • P. Simon, ‘”Ethnic” studies and data protection in Council of Europe countries, ECRI, Council of Europe, Nov. 2007

  5. DATA COLLECTION AND PROCESSING OF PERSONAL DATA What are personal data? Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data: personal data are ‘any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity’ (art. 2, a)) Data collection does not necessarily comprise the processing of personal data Cf. anonymous questionnaires, direct observations, surveys, or personal data made anonymous for further processing

  6. THE TYPOLOGY OF POSITIVE ACITON MEASURES AND DATA COLLECTION

  7. AFFIRMATIVE EQUALITY AND PRIVACY RIGHTS The questions : • Compatibility of the processing of ‘sensitive’ data (‘race’, ethnicity, religion) for the purposes of positive action policies with the requirements of data protection legislation • Compatibility of the processing of ‘sensitive’ data (‘race’, ethnicity, religion) for the purposes of positive action policies with the requirements of the right to privacy as ‘self-determination’ (Selbstbestimmung) • What are the advantages and dangers of the categorization of persons according to ‘racial’ / ethnic lines?

  8. PROCESSING OF SENSITIVE DATA AND PERSONAL DATA LEGISLATION The general principles governing the processing of personal data (art. 6 of directive 95/46): Personal data must be: (a) processed fairly and lawfully; (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that Member States provide appropriate safeguards; (c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed; …

  9. PROCESSING OF SENSITIVE DATA AND PERSONAL DATA LEGISLATION (cont’ed) … (d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified; (e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. Member States shall lay down appropriate safeguards for personal data stored for longer periods for historical, statistical or scientific use.

  10. PROCESSING OF SENSITIVE DATA AND PERSONAL DATA LEGISLATION (cont’ed) The processing of special categories of data (art. 8, dir. 95/46): 1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. 2. Paragraph 1 shall not apply where: (a) the data subject has given his explicit consent to the processing of those data, except where the laws of the Member State provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject's giving his consent; or (b) processing is necessary for the purposes of carrying out the obligations and specific rights of the controller in the field of employment law in so far as it is authorized by national law providing for adequate safeguards; or (…) 4. Subject to the provision of suitable safeguards, Member States may, for reasons of substantial public interest, lay down exemptions in addition to those laid down in paragraph 2 either by national law or by decision of the supervisory authority.

  11. PROCESSING OF SENSITIVE DATA AND PERSONAL DATA LEGISLATION (cont’ed) Conclusion: 1° the processing of sensitive personal data for the implementation of positive action schemes is allowable either where the data subject has given his/her free and informed consent; or where this is made obligatory under national legislation (may be implicit, where a presumption of discrimination may be established by the use by the victim of statistics) 2° but the data collected must be adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed; and they must be processed fairly and lawfully

  12. PROCESSING OF SENSITIVE DATA AND PRIVACY AS SELF-DETERMINATION • German Federal Constitutional Court (Bundesverfassungsgericht), judgment of 15 December 1983 (Census case): “informational self-determination” (informationelle selbstbestimmung) • Article 8 ECHR (1950), right to respect for private life “includes a person's physical and psychological integrity and can sometimes embrace aspects of an individual's physical and social identity” (Mikulic v. Croatia, 2002) • Council of Europe Framework Convention for the Protection of National Minorities (1995), art. 3: every individual shall have the right freely to choose to be treated or not to be treated as belonging to a national minority and no disadvantage shall result from this choice (Advisory Committee: answers to census questions about membership in a national minority must be optional)

  13. PROCESSING OF SENSITIVE DATA AND PRIVACY AS SELF-DETERMINATION (cont’ed) However, these are not absolute rights, see eg : • Eur. Ct. HR, Kosteski v. FYROM judgment of 13 April 2006 : ‘While the notion of the State sitting in judgment on the state of a citizen’s inner and personal beliefs is abhorrent and may smack unhappily of past infamous persecutions, the Court observes that this is a case where the applicant sought to enjoy a special right bestowed by Macedonian law which provided that Muslims could take holiday on particular days’ (§§ 38-39).

  14. PROCESSING OF SENSITIVE DATA AND PRIVACY AS SELF-DETERMINATION (cont’ed) • As regards the implementation in Northern Ireland of the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO), see FCNM Advisory Committee, Second Opinion on the UK : ‘The Advisory Committee notes that the data collected under the fair employment legislation remain anonymous and may be used purely for statistical purposes, in order to determine whether members of each community are enjoying fair participation in employment and, if not, to identify additional measures that could be adopted to secure fair participation. The Advisory Committee reminds the Government that restrictions on the right to free self- identification by persons belonging to national minorities are not consistent with Article 3 of the Framework Convention. However, the Advisory Committee considers that, in the specific context of Northern Ireland, and at this particular moment in time, the determination by employers of the community background of their employees, trainees and applicants may be relevant in order to secure the fair participation of under-represented groups’.

  15. ADVANTAGES AND RISKS IMPLICATED IN RACIAL / ETHNIC CLASSIFICATIONS Opening the debate…

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