West Coast, East Coast, and Now Mountains, Too: Colorado Joins the Comprehensive State Privacy Law Club

With the U.S. Congress continuing to stymie federal omnibus privacy legislation, states have decidedly taken up the call. Most recently, on July 8, 2021, Colorado Gov. Jared Polis signed into law Senate Bill 21-190, the Colorado Privacy Act (CPA). With the signing of the CPA, which will largely go into effect on July 1, 2023, Colorado became the third state to enact comprehensive privacy legislation following the California Privacy Rights Act (CPRA) and the Virginia Consumer Data Protection Act (VCDPA). Other states have taken a more limited approach, most notably Nevada, which increased the scope of the right to opt out of personal data sales under its targeted privacy law.

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Long-Awaited Online Safety Bill is Introduced by the UK Government to Combat “Harmful” Online Content

Two years after the UK Government first put forward its intention to introduce a new regime to address illegal and harmful content online, the UK Government published the Online Safety Bill (“Bill”) on 12 May 2021. The Bill imposes duties of care on providers of digital services, social media platforms and other online services to make them responsible for content generated and shared by their users and to mitigate the risk of harm arising from illegal content (e.g., by minimising the spread of such content). The Bill also aims to ensure that users are able to express themselves freely online and requires platforms to consider the importance of freedom of expression when fulfilling their duties.

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European Data Protection Board Issues Final Schrems II Recommendations

The European Data Protection Board (“EDPB”), adopted on 18 June 2021 its final recommendations describing how controllers and processors transferring personal data outside the European Economic Area (“EEA”) may comply with the Schrems II ruling (“Final Schrems II Recommendations”). The Final Schrems II Recommendations, together with the new Standard Contractual Clauses (“SCCs”) adopted by the European Commission on 4 June 2021, will now allow organizations to proceed with addressing international data transfers following the landmark Schrems II ruling by the Court of Justice of the European Union in July 2020.

The Final Schrems II Recommendations have maintained the requirement to carry out a 6 Step assessment prior to transferring personal data outside the EEA in reliance on a data transfer tool, such as SCCs. However, there have been some important amendments from the draft recommendations published in November 2020 in order to:

  • better align with the new SCCs recently adopted by the European Commission; and
  • allow more flexibility in carrying out the assessment of third country laws in Step 3 by being able to take into account practice in the third country as well as the documented practical experience of the data importer.

Our previous blog post on the draft EDPB’s Schrems II recommendationsv provides further details on the 6 Step process that organizations should follow when transferring personal data from the EEA to a third country such as the U.S. Here we summarise some of the key differences in the 6 Steps as between the draft recommendations and the Final Schrems II Recommendations.

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European Commission Publishes Details of its Forthcoming Data Act

The European Commission has formally launched its legislative initiative aimed at increasing access to and further use of data, so that more public and private actors can benefit from technologies such as Big Data and machine learning. The Commission has published its inception impact assessment on the forthcoming Data Act, on which interested stakeholders can submit comments until 25 June 2021. In parallel, the Commission has launched a public consultation for the legislative initiative, to be conducted by an online questionnaire, with a deadline of 3 September 2021. Feedback will be taken into account for further development and fine tuning of the initiative to be tabled in Q3-Q4 2021.

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Nevada Updates its Existing Online Privacy Notice Statutes

On June 2, 2021, Nevada Governor Steve Sisolak signed SB260, a bill that will amend the state’s existing privacy notice legislation, NRS 603A.300 to .360 (“Existing NV Privacy Law”). SB260 amends the Existing NV Privacy Law by exempting certain persons and information collected about a consumer from the law’s privacy requirements, expanding the types of entities that must facilitate consumer privacy opt-out rights, providing new and updated definitions, authorizing the opportunity to remedy a failure to comply with certain requirements, and updating other provisions to reflect the addition of data broker entities. Most notably, SB260’s addition of “data broker” to the existing statutory framework, in addition to the updated definition of “sale”, provides consumers with a broader opt-out right and likely brings more entities under the scope of the law. That said, even after the amendments, the Nevada law remains narrower than the California Consumer Protection Act (“CCPA”), as well as the forthcoming California Privacy Rights Act (“CPRA”) and  Virginia Consumer Data Protection Act (“VCDPA”) that go into effect on January 1, 2023.

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UK Moves to Reconcile Antitrust and Data Protection Enforcement in Digital Sectors

Last year, to address the increasing overlaps between data protection and antitrust enforcement, the UK launched the Digital Regulatory Cooperation Forum (DRCF). The DRCF brings together the four UK regulators most involved in digital matters (i.e., the Competition and Markets Authority (CMA), the Information Commissioner’s Office (ICO), the Office of Communications (Ofcom) and the Financial Conduct Authority (FCA)). Its main objective is to enable coherent and informed regulation of the UK digital economy.

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Developments in Cookie Regulation: French CNIL Declares Intent to Audit Websites for Cookie Compliance

On April 2, 2021 the French Data Protection Authority (the “Commission Nationale de l’Informatique et des Libertés” or “CNIL”) published its intent to start auditing websites for compliance with cookie regulations. This publication comes following a large number of developments and actions taken by the CNIL to further improve and guide organizations through cookie compliance. The CNIL had issued several recommendations, guidelines and cookie tools to raise awareness on the importance of this topic, with a final set of guidelines published on October 1, 2020 following public consultation rounds (“Cookie Guidelines”). The CNIL had determined that a 6-month grace period would apply following publication of the Cookie Guidelines. This grace period ended on April 1, 2021 and the CNIL now expects companies to be compliant with its recommendations and guidelines. The CNIL has confirmed that it may make use of the totality of its corrective powers to remedy non-compliance with the rules, including issuing (public) sanctions. In light of the increase in scrutiny on cookies in the EU (and the US pursuant to certain state laws), organizations with websites / platforms operating in the EU (and U.S.) may want to reconsider their cookie practices and start carrying out cookie audits.

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All Buttoned Up: The California AG Proposes Additional CCPA Regulations

On December 10, 2020, the California Attorney General (“AG”) proposed additional edits to the CCPA Regulations. These changes both build upon the updates that were proposed on October 12, 2020, and add some new content. All of the newly proposed changes relate to the right to opt-out of the sale of personal information.

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