Data Protection & Land Registry Publicity: A Comprehensive Overview

1. Data Protection andLand Registry’s Publicity:A Happy Divorce ?! Tallinn 2 December 2011

2. Overview A little quiz Data Protection Property rights and the publicity principle A happy divorce Tallinn 2 December 2011

3. 1. A little quiz Question 1 If a person gives you the (complete) address of a house, are you allowed to tell him who owns the house ? Yes No Yes and no Question 2 If a person gives you the (complete) identity of a person, are you allowed to give him the list of all the land that person owns ? Yes No Yes and no Tallinn 2 December 2011

4. 2. Data Protection 2.1. A fundamental right The protection of personal data is a fundamental right in the European Union: Article 8 - Protection of personal data - of the Charter of Fundamental Rights of the European Union: Everyone has the right to the protection of personal data concerning him or her. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. Compliance with these rules shall be subject to control by an independent authority. Tallinn 2 December 2011

5. 2. Data Protection 2.2. The Data Protection Directive The 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 www.ec.europa.eu/justice/data-protection Tallinn 2 December 2011

6. 2. Data Protection 2.3. The Data Protection Directive: some key definitions Data: information (in an electronic form that can be processed by a computer). Personal data: any information relating to an identified or identifiable natural person. Processing of personal data: any operation or set of operations performed upon personal data (collection, recording, consultation, ...). Data controller: the person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data (e.g. the Land Registry itself, the ministry, ... ). Data subject: the person whose personal data are being processed (e.g. the proprietor, the mortgagor and mortgagee, ... entered in the land register). Tallinn 2 December 2011

7. 2. Data Protection 2.4. The Data Protection Directive: the eight data protection principles 1. Personal data must be processed fairly and lawfully. 2. Personal data shall be collected only for specified, explicit and legitimate purposes, and shall not be further processed in any manner incompatible with that purpose. 3. Personal data shall be adequate, relevant and not excessive in relation to the purpose for which they are collected and/or processed. 4. Personal data shall be accurate and, where necessary, kept up to date. Tallinn 2 December 2011

8. 2. Data Protection 5. Personal data shall not be kept in a form which permits identification of the data subject for longer than is necessary for the purpose for which the data were collected and/or processed. 6. Personal data shall be processed in accordance with the rights of data subjects under the Data Protection Directive. 7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. 8. Personal data shall not be transferred to a third country unless that country ensures an adequate level of protection for the rights of data subjects in relation to the processing of personal data. Tallinn 2 December 2011

9. 2. Data Protection 2.5. Applying the data protection principles in land registration A lot of questions and only a few sure answers (maybe because most of the Land Registration Acts were drafted and enacted before the Data Protection Directive). i. Are all the object related data necessarily personal data? For instance, is the adress of a plot of land a personal datum? ii. What are the ‘specified, explicit and legitimate purposes’ of the collection of personal data in the land register? iii. Are the personal data always accurate and up to date? Tallinn 2 December 2011

10. 2. Data Protection 2.6. The ongoing review (reform) of the Data Protection Directive See, the communication of 4 November 2010 from the Commission ‘A comprehensive approach on personal data protection in the European Union’ COM(2010) 609 final (and ELRA’s comments of January 2011); the speeches and memos of Commissioner Reding; the draft report of MEP Voss (2011/2025(INI)); the Rand (Europe) Report ‘Review of the European Data Protection Directive’: www.rand.org/content/dam/rand/pubs/technical_reports/2009/RAND_TR710.pdf Tallinn 2 December 2011

11. 3. Property rights and the publicity principle 3.1. Property rights (rights in rem) A property right is a relation between an object and a subject. A personal right (a right in personam) is a relation between a subject and a subject. A property right ‘sticks’ to the object: if the object is transferred, the property rights are transferred with it (e.g. an easement). In other words: a property right is good against the whole world, it has erga omnes effect. Tallinn 2 December 2011

12. 3. Property rights and the publicity principle 3.2. The publicity principle A property right ‘sticks’ to the object and, hence, a property right is good against the whole world. This brings us to the principle of publicity: the whole world must be enabled to know the property rights ‘sticking’ to the object. Tallinn 2 December 2011

13. 3. Property rights and the publicity principle ‘Because of the ergaomneseffect of property rights, third parties must be aware of such rights. In order to provide a sufficient degree of transparency it must, first of all, be clear with regard to which object a property right is claimed and, second, that right must be visible to third parties. Visibility can result either from the exercise of factual power (possession) or of registration. These two aspects of the transparency principle are generally known as the principles of specificity and publicity. The trans- parency principle can be found in both civil law and common law.’ (Professor Sjef Van Erp, Comparative Property Law, in The Oxford Handbook of Comparative Law, edited by Mathias Reimann and Reinhard Zimmerman (2006), p. 1060) See also, inter alia, Van Erp, European and National Property Law: Osmosis or Growing Antagonism, Sixth Walter van Gerven Lecture (2006). Tallinn 2 December 2011

14. 3. Property rights and the publicity principle 3.3. The Land Registry The Land Registry is the public authority that applies the publicity principle: the Land Registry makes the property rights (and charges) public. The publicity principle implies that the register is public: the whole world should be able to consult the register in order to find out what property rights (and charges) exist on a plot of land. Tallinn 2 December 2011

15. 3. Property rights and the publicity principle 3.4. The public register and data protection The land register is a public register in which personal data are processed. Thus the data protection principles apply. Cf. opinion No 3/99 of the Article 29 Working Party ‘Public sector information and the protection of personal data’. Two models: there are no restrictions as to the consultation of the public register; or there are restrictions (the ‘legitimate interest’). Tallinn 2 December 2011

16. 3. Property rights and the publicity principle Difficulties concerning the legitimate interest: limited to certain professions (and what about the European citizen)? Could a creditor not obtain a list of the properties of the debtor? Why not? We should reflect on what is made public and limit it to the core of the property right: the relationship between an object and a subject. Certainly in a deed registration system, making the whole deed public might be considered as a violation of the proportionality principle of data protection. Can we argue that making the price of a purchase of a house public is ‘legitimate’ in the light of the publicity principle? Tallinn 2 December 2011

17. 4. A happy divorce The data protection principles can be considered as the opposite of the publicity principle. Forcing the two principles to live together leads to an unhappy marriage. That’s why I prefer the happy divorce. Divorce, for sure, but a happy divorce, because the two principles still care for each other. Tallinn 2 December 2011

18. I hope I made you wonder ... Tallinn 2 December 2011