State Secretary Van Huffelen (Digitalization and Kingdom Relations) sends the House of Representatives the report of the expert meeting Control, ownership and personal data.
You can read the report here.
Date May 9, 2022
Concerns ownership of personal data
In the general consultation Digitalization with your Chamber on July 1, 2020, then State Secretary Knops promised members Van Dam, Van der Molen and Middendorp to look again at the possibilities for strengthening the position of citizens and consumers in the use of personal data. (1) This mainly concerned the question of whether citizens' control over the use of their personal data could not be more strongly guaranteed under private law.
The further investigation took the form of an expert panel. In short, the outcome is that personal data of a citizen or consumer cannot be considered property. A private law guarantee of control over personal data does not provide citizens with any more guidance than the AVG and public or consumer protection law can provide. European regulations are also developing strongly in this area, and do not do so along the lines of property law. I am happy to explain this.
First, the commitment had a prior history.
For example, there was a consultation with your Chamber on September 10, 2019, in response to the Unsolicited Opinion on the Effects of Digitization on Rule of Law Relations issued by the Advisory Division of the Raad van State on August 31, 2018 (2). In that consultation it was promised, that further consideration would be given to the question whether it is possible to give citizens ownership of their personal data.
This was followed by a reply and explanation by letter to the House of Representatives dated June 15, 2020. (3) Therein, as a starting point, it was expressed that a citizen is not concerned with ownership of his personal data, but above all he needs control over the use of his personal data. The aim of the policy is therefore - as was expressed in the earlier letter about direction on data to your Chamber of July 2019 (4) - to give citizens as much say and control as possible over the use of their personal data in government.
The June 15, 2020 letter also indicated, that there are limits to that control. Because the government needs personal data to perform its legal duties. Also, the data always reflect a reality that is mostly objective in nature and cannot be changed according to the wishes or needs of the citizen himself (age, parents, driving license, etc.). Another argument concerned the fact, that personal data is not simply transferable to another person.
Expert panel.
In consultation with the Minister for Legal Protection, an expert panel considered this matter in more detail at our request. This panel was asked to consider how the citizen or consumer, can be given more control over the use of their personal data, and whether this control could be even better secured from a private law ownership regime. In doing so, the panel was also asked if they had any other suggestions for increasing citizens' control over the use of their personal data.
Ms. Prof. Dr. Purtova, the author of the thesis cited by your chamber in the July 1, 2020 General Consultation (5), was part of this panel. Mr. mr. dr. Hooghiemstra acted as independent chairman and moderator. The further composition of the panel can be found in the report. The expert panel discussion took place at the end of October 2021.
Outcomes.
In their considerations, the experts confirmed the line expressed in previous letters to the House of Representatives on control of personal data. Namely, that in the relationship between government and citizens, control of personal data is governed by administrative law and should remain so. There is no role for property law in this regard.
The experts identified directions for further improvement that tie in with various initiatives already underway within the data governance program. For example, efforts are currently being made to make the reuse of their personal data for government tasks more visible to citizens. (6) I am also thinking, for example, of the legal embedding of the digital sharing of personal data from government records by and under the direction of citizens. I intend to flesh this out as part of the second tranche of the digitale overheid Act. In the negotiations in various EU dossiers I am committed to ensuring that citizens have more digital control over their personal data. For the sake of brevity, I refer to the dialogue with your Chamber on the European Identity Framework Regulation. (7)
The experts also made some additional suggestions for ways in which control over personal data could potentially be further strengthened, for example by encouraging and improving opportunities for citizens to take legal action against AVG violations through collective action. The previous administration has already commissioned research into this at the request of your chamber in 2019. (8) The research is broader than just Big Data or personal data. This research shows that - especially in the Netherlands - there are sufficient legal possibilities to take collective action also in case of unlawful processing of personal data. (9) However, the government did see reason to investigate whether, and if so how, a 'litigation fund' could offer a solution to facilitate the financing of collective actions. This research is currently being conducted on behalf of the Scientific Research and Documentation Center (WODC). (10) Several large collective actions of alleged AVG violations in the Netherlands have also been launched recently. (11)
I offer you the report attached. Finally, I assure you that together with the Ministers of Justice and Security and of Economic Affairs and Climate, I am closely following the European agenda. What can be regulated at EU level about control over personal data has our attention. We will remain in close dialogue about this in the coming period.
I consider this letter with the report of the expert panel as fulfilling the commitment made in the consultation with your Chamber dated July 1, 2020, and that also on behalf of my colleague, the Minister for Legal Protection.
The State Secretary for Digitalization and Kingdom Relations
Digitalization and Kingdom Relations
Alexandra C. van Huffelen
1) Proceedings TK 2019-2020, 26 643 Information and Communication Technology (ICT), Report of a General Consultation (dated July 1, 2020), adopted 31-07-2020.
2) TK 2017-2018, 26 643, no. 557.
3) TK 2019-2020, 32 761, no. 165, letter from the State Secretary of the Interior and Kingdom Relations on ownership of personal data, sent also on behalf of the Minister for Legal Protection, dated June 15, 2020.
4) TK 2018-2019, 32 761 no. 147, dated 11-07-2019.
5) 'Property rights in personal data; a European perspective' (2011), N.N. Purtova, Tilburg University, BoxPress BV.
6) Since the beginning of March 2022, it is visible in MijnOverheid, for example, when viewing one's own personal data list from the BRP, to which other agencies this data is regularly passed on as part of their statutory duties.
7) TK 2021-2022, 22112, no. 3241 dated 30 Nov 2021 in response to the BNC fiche dated 9 July - TK 2020-21, 22 112, no. 3161.
8) The Modernization of Dutch Procedural Law in the Light of Big Data | Report | Rijksoverheid.nl
9) Kamerbrief met kabinetsreactie op onderzoeken naar algoritmen | Kamerstuk | Rijksoverheid.nl pp. 6-7
10) Utility and necessity of creating a process fund | What research do we do | WODC - Scientific Research and Documentation Center
11) See for example: https://www.consumentenbond.nl/acties/facebook
