The European Court of Human Rights (“ECtHR”) ruled earlier this month that an employer’s monitoring of an employee’s personal emails in a work-related Yahoo account was not a breach of the employee’s Article 8 privacy rights (“the right to respect for private and family life, the home and correspondence”). The court’s ruling was not a general approval of employee monitoring, but was dependant on several critical facts, including the employer’s policy completely prohibiting personal communications on work accounts, and the limited nature of the monitoring into only the work account.
After almost four years of intense negotiations, on 15 December 2015, an informal agreement on the proposed EU Data Protection Regulation was reached between the Council of Ministers and the European Parliament. An extraordinary meeting of the LIBE Committee is scheduled for 17 December 2015 for the 28 EU Member States to vote on the text. Final adoption of the Regulation is likely to be in early 2016.
In 2013, the European Commission put forward a proposal for a Network and Information Security Directive (the “NIS Directive”) as part of the EU’s Cyber Security Strategy. The European Parliament and Council of Ministers recently reached political agreement on the NIS Directive on 7 December 2015, which includes data breach notification obligations.
According to the Commission’s press release published on 8 December 2015, the NIS Directive will improve the cybersecurity capabilities of and cooperation between EU Member States. The Commissioner for the Digital Economy and Society further explained that this improved cooperation will assist the EU in its fight against increasing numbers of cyber attacks, commenting that “cybersecurity is essential in today’s European digital economy and society – and it remains a permanent challenge.”
As the legislative journey for the General Data Protection Regulation (“GDPR”) nears its conclusion, last week (Nov. 27,2015) saw the publication of a further compromise text which left the door open for additional “trilogue” discussions on the much-debated subjects of administrative fines, data protection officers (“DPOs”), and data breaches, as well as details of other provisions.
On October 29, 2015, the European Parliament adopted a resolution on the electronic mass surveillance of EU citizens (the “Resolution”). Positioned as a follow-up to its resolution of 12 March 2014 in which the Parliament called for the immediate suspension of Safe Harbor and put forward a number of recommendations to limit access to personal data of European citizens as part of mass surveillance, the Resolution calls on the European Commission to “reflect immediately on alternatives to Safe Harbor and on the impact of the judgment [from the Court of Justice of the European Union in the Schrems case] on any other instruments for the transfer of personal data to the U.S.” It also calls for the European Commission to “report on the matter by the end of 2015.” In addition, the European Parliament demanded that the Commission urgently provide an update on the ongoing negotiations between US authorities and the Commission.
The Article 29 Working Party, which includes representatives from all EU Data Protection Authorities, released its much-awaited guidance on the judgment by the European Court of Justice declaring the European Commission’s decision on the Safe Harbor to be invalid. Described as “a collective and common position on the judgment,” the “first consequences to be drawn at European and national level” are as follows:
A new EU-US data protection “Umbrella Agreement” has been finalized which once in force will implement a high-level data protection framework to cover the transfer of personal data from the EU to US authorities for the purposes of law enforcement. Although this new agreement relates only to the transfer of information for law enforcement purposes, those issues have been particularly sensitive post-Snowden. Accordingly, the finalization of this agreement may alleviate a particular point of contention and suggest that the overall discussions on the EU-US Safe Harbor are more likely to result in the continuation of that broader agreement.
On August 18, 2015, the UK Information Commissioner’s Office (ICO) issued an enforcement notice against Google ordering the removal of nine search results that linked to information about a certain individual’s criminal offence.
More than three years after the initial proposal for the EU Data Protection Regulation was published by the European Commission, it has been agreed by Europe’s Council of Ministers. The negotiations will now start between the commission, the European Parliament and the Council, in what is known as the “Trilogue” process, to agree the final text of the regulation, which is widely expected to be adopted by the end of 2015 or early 2016. The regulation, once adopted, will have a significant impact not only on EU companies but also on U.S. and other international companies that conduct business in the EU.
Data Protection Law & Policy
In the last few years, privacy has evolved to become a topic of concern for more and more people. Recent studies have also shown that people have stopped using a particular product or service because they were worried about how it used their personal data. However, what is less clear is whether this is a concern for all generations or does the common perception that young people do not care about their privacy hold some element of truth? William Long, Geraldine Scali and Francesca Blythe, Partner, Senior Associate and Associate respectively at Sidley Austin LLP, explore this question.