Is my smart TV working for Big Brother? The European Audiovisual Observatory has published in February 2016 a report entitled "Smart TV and data protection".
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The structure of this study is built around the following questions:
Samsung have warned owners of their smart TVs that the system’s voice recognition could actually be recording and sharing their private conversations. This “bad buzz” comes at a time when Brussels is in the process of adopting new legislation – the General Data Protection Regulation (GDPR) - aimed at protecting us from abuse and misuse of our private data and consumer behaviour big data collected by smart equipment such as television sets. The European Audiovisual Observatory, part of the Council of Europe in Strasbourg, is keeping track of these developments and has published this IRIS Special report entitled "Smart TV and data protection".
This is a joint publication by the Observatory and partner institution, the Dutch Institute for Information Law (IViR in Amsterdam). It inspired an expert workshop organised in Strasbourg December 2015, which looked at “the grey areas between media regulation and data protection”.
Chapter I explores the different terminological and definitional approaches to ‘smart TV’ and thereby positions it in relation to other forms of (interactive) audiovisual media. It identifies the main distinctive features of smart TV (for privacy-related/data protection purposes) as: speech recognition, motion sensing, facial recognition, interactive capacity (e.g. via apps and social media) and integrated user accounts (e.g. Samsung). These features of smart TV facilitate the collection, storage and processing of personal information by commercial parties. These features then serve as key focuses for the exploration of the regulatory framework and case studies in subsequent chapters.
Chapter II explains how audiovisual media regulation and privacy/data protection regulation have traditionally developed in isolation from one another. Convergence and the emergence and expansion of intelligent technologies are forcing regulators in both sectors to find each other and pursue new regulatory approaches that reflect and address these developments. This chapter examines the lack of relevance of the AVMSD; the limited relevance of the Framework and Access Directives; the growing relevance of the Data Protection and E-Privacy Directives, and the likely implications of the (draft) General Data Protection Regulation. It also explains the relevance of consumer law and human rights law.
Building on the analysis of the complex regulatory framework, Chapter III offers an overview of how relevant legal issues are arising and being dealt with in practice at the national level. Four case studies form the core of the chapter, drawing on experiences in Germany, the Netherlands (two case studies) and the United States:
Each of the case studies involves a detailed analysis of the legal issues involved and their broader implications for regulatory approaches to smart TV.
Chapter IV builds on the preceding chapter and, while reflecting on future regulatory developments (in particular the likely implications of the draft General Data Protection Regulation), focuses on the distinctive features of smart TV as identified above, and the (potential) harms that arise from the collection, storage and processing of personal data, as enabled by those technological features.
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1. Definitions and Features
1.1. What is a smart TV?
1.2. What data can a smart TV collect?
1.2.1. Voice recognition
1.2.2. Motion control and facial recognition
1.2.3. (Samsung) Account
2. Regulatory frameworks
2.1. Audiovisual Media Services Directive
2.2. E-Communications Framework
2.3. Provisions on e-privacy and data protection
2.3.1. Scope of application
2.3.2. General definitions and principles
126.96.36.199. Personal data
2.3.3. E-Privacy Directive
2.3.4. Data Protection Directive
188.8.131.52. Confidentiality and security of processing
184.108.40.206. International data flows
2.3.5. New data protection regulation
2.4. E-Commerce Directive and EU Consumer Protection Law
2.5. Human Rights Framework
3. Case studies by country
3.1.1. The joint position
3.1.2. The technical test
3.1.3. Guidance Document on Data Protection Requirements for Smart TV Services
3.2. The Netherlands
3.2.1. Case study 1 – CBP v. TP Vision
220.127.116.11. Factual background
18.104.22.168. Legal framework
3.2.2. Case study 2 - CBP v. Ziggo
22.214.171.124. Factual background
126.96.36.199. Legal framework
188.8.131.52. Future implications
3.3. An American Example
3.3.1. Electronic Privacy Information Center v. Samsung
184.108.40.206. Factual background
220.127.116.11. Legal framework
18.104.22.168. Likely implications
4. The General Data Protection Regulation
4.1. Smart TVs and the General Data Protection Regulation
22.214.171.124. Any information
126.96.36.199. Relating to
188.8.131.52. Identified or identifiable person
184.108.40.206. Natural person
220.127.116.11. Special categories of data
18.104.22.168. Territorial scope
22.214.171.124. Voice recognition
126.96.36.199. Motion control and facial recognition
188.8.131.52. Account creation
4.2. The Regulation’s level of protection
4.2.1. Key provisions
184.108.40.206. Contractual duties
220.127.116.11. Legitimate interests of the controller
4.2.2. Other relevant provisions
4.3. What is an adequate level of protection, and is it offered by the Regulation?
4.3.1. What requires protection and why?
4.3.2. What is adequate protection?
4.3.3. Does the Regulation provide an adequate level of protection?
18.104.22.168. Other requirements
Legal Observations of the European Audiovisual Observatory
Database on legal information relevant to the audiovisual sector in Europe
Database on the transposition of the AVMS Directive into national legislation
Database on admissions to films released in Europe
Database on TV and on-demand audiovisual services and companies in Europe