Holocaust historians run into political opposition in Brussels over data protection law

Jerusalem Post 11 November 2015
By Sam Sokol

Activists claim draft regulation is already making it harder to access archives.

Holocaust researchers have run into political pushback in Brussels over an effort to amend an EU draft regulation on data protection that they say has already hurt their ability to access archives, even before its passage.

The International Holocaust Remembrance Alliance has been lobbying legislators and bureaucrats in the European capital since 2012 over the wording of a small portion of the General Data Protection Regulation, a measure being touted by policy-makers as creating a “right to be forgotten” for EU citizens.

Researchers across the continent – especially in Sweden, France and Germany – have claimed that archivists have begun restricting access to data, citing the GDPR as their rationale for not complying with requests for documents.

Because the legislation does not stipulate how long after a person’s death his or her private information can be revealed, or when access to such information can be granted, some archivists “have begun reading into what they understand the law will be,” and are “barring access to materials, including materials [related to] the history of the Holocaust,” Dr. Robert Williams said.

Williams, who spoke with The Jerusalem Post earlier this month, is head of IHRA’s Committee on Archival Access and a researcher at the US Holocaust Memorial Museum in Washington.

Twenty-four out of 28 EU member states that are members of IHRA voted for the international body to push for the inclusion of a reference to the Holocaust in the legislation. However, many of the countries involved have stood on the sidelines during IHRA’s lobbying campaign. Members Estonia and Poland have actively opposed the inclusion of IHRA’s addition, which states that “nothing in this Regulation affects the full and open access to documents bearing on the Holocaust.”

In a statement released on Monday, IHRA said that “negotiations with stakeholders in Brussels showed that there was little chance of securing” the amendment.

“Despite the IHRA consensus decision taken in June, only six IHRA member countries supported the IHRA proposal. While the majority of IHRA EU member countries kept silent, two member countries officially opposed the IHRA proposal and did not only act in contradiction to an IHRA consensus decision, but also in contradiction to their commitment to the Stockholm Declaration.”

That treaty required its signatories to “take all necessary steps” in making sure that records bearing on the Holocaust are available to researchers.

IHRA later clarified that eight states had supported its efforts.

According to Williams, speaking in his capacity as an IHRA official, there is a disconnect between the nations’ representatives to IHRA and their counterparts in Brussels.

At the same time, he added, “there seems to be a belief in Brussels that GDPR will allow for access to Holocaust-related material, and so there is no need to make this explicit.”

This view is also held by Péter Nikolicza, second secretary to the Hungarian Permanent Representation to the EU, who is spearheading IHRA’s lobbying efforts on behalf of Budapest, which holds the organization’s rotating chair.

European bureaucrats and lawyers, who wield immense influence, do not understand the difficulties created by their legislation, he said.

If they were to request documents at an archive, they would know how to respond and would counter that the legislation is still in draft and does not preclude accessing Holocaust archives.

“The problem is if you are a not a lawyer but a researcher and want to do the same and you get this refusal, you don’t know what to do,” Nikolicza said.

Moreover, whole delegates to IHRA, most of whom represent their countries’ respective foreign ministries, may support the issue, but those who handle data protection issues generally come from their countries’ justice ministries, creating a disconnect.

“Several of my colleagues in Brussels in charge of data protection said that they understand that their foreign ministries are of a different opinion, but that they think this archive issue can be resolved without specific reference to holocaust,” Nikolicza said.

IHRA executive secretary Dr. Kathrin Meyer has expressed “outrage” at some of the opposition coming from Brussels during a telephone call with the Post from her office in Berlin.

She said that many in Brussels have told her that if the Holocaust is included, it opens the door to reference many other horrific events such as the Armenian genocide, and that if the Holocaust was included it would open the door for everybody’s “pet projects.”

Such assertions are incredibly problematic, Meyer said, explaining that the Holocaust is not simply one cause among many but one of the foundational events that led to the creation of contemporary Europe. Moreover, she said, language has already been inserted relating to the Red Cross.

“To reduce the Holocaust to a pet project is just scandalous,” she added.

Meyer also expressed anger toward GDRP rapporteur Jan Philip Albrecht of Germany, whom she described as one of the primary opponents to the IHRA’s amendment.

“I can’t tell you how outraged I am,” she said, citing his explanation that anyone facing difficulties can go to court to secure access.

Speaking to the Post, Albrecht stated that he thinks “it’s some kind of misunderstanding that those organizations think that the work being done today isn’t possible under this regulation.

“We came to the conclusion that if there is any problem then we will fix the problem. I am completely in favor of allowing this research to happen and it should be clarified if needed.”

While he felt it was unnecessary and a complication to include the Holocaust in the text itself, Albrecht did say he believed that it was possible to include a reference in the “reciters” – supplements to the text.

Meyer said that a recent compromise in which reference would be made to “genocide, crimes against humanity or war crimes” was welcome, but that she was going to continue pushing.

“In a legal sense it’s a big success. If we can get the holocaust in it would be better but we could live with this now,” Meyer added.

Nikolicza, however, wasn’t so sure.

“As a lawyer I would say yes, but if I were a non-lawyer I’d be less optimistic, because there were cases already where archivists have misunderstood language of the GDPR, and in the end if we insert this one word we wouldn’t hurt anyone but it would be a great assistance and help for those 25-year-old non-lawyer researchers.”

The EU’s promotion of the law as creating a “right to be forgotten” has created misperceptions of how it will work, Nikolicza said, adding that recent moves by EU lawyers have indicated there may be room for optimism.

Asked about their opposition, an Estonian government spokeswoman said that while her government was in no way opposed to archival access, “We consider the GDPR to be a general regulation, which, as such, should be as neutral as possible.”

“We supported the commission proposal, which already took into account much of the worries that had been aired by Holocaust researchers and that had provoked the IHRA decision to ask the EU to insert a specific phrase concerning the Holocaust research,” the spokeswoman said.
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