European Data Protection Board Issues Schrems II Recommendations
Following the Court of Justice of the European Union’s (“CJEU”) decision in Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems on 16 July 2020 (“Schrems II”), the European Data Protection Board, tasked with overseeing compliance with the GDPR (“EDPB”), on 11 November 2020 issued its anticipated recommendations describing how controllers and processors transferring personal data outside the European Economic Area (“EEA”) may comply with the Schrems II ruling. These recommendations are applicable immediately but are open for public consultation until November 30. Information on submitting public comments is accessible here.
In Schrems II, the CJEU invalidated the EU-U.S. Privacy Shield program (“Privacy Shield”) and potentially required supplementary protections to be implemented when Standard Contractual Clauses (“SCCs”) are used to ensure an ‘essentially equivalent’ level of data protection. Under the GDPR, personal data transfers outside the EEA to jurisdictions which are not found to provide an ‘adequate level of protection’ to the data, are restricted unless appropriate safeguards are implemented. The Privacy Shield and SCCs were two key appropriate safeguard mechanisms used to legitimize transfers of personal data outside the EEA to ‘non-adequate’ recipient countries, referred to as “Third Countries.”
European Data Protection Supervisor Issues Schrems II Guidelines
Following the Court of Justice of the European Union’s (“CJEU”) decision in Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems on 16 July 2020 (“Schrems II”), the European Data Protection Supervisor, tasked with overseeing compliance with EU data protection laws by the EU institutions (“EUIs” and “EDPS”), issued guidance on 29 October 2020 on how EU institutions should comply with the Schrems II ruling (“EDPS Guidance”). In Schrems II, the CJEU invalidated the EU-U.S. Privacy Shield program and potentially required additional protections to be implemented when Standard Contractual Clauses are used. Both are key legal mechanisms used to enable transfers of personal data outside the EU.
French Council of State Partially Annuls CNIL Cookie Guidelines on Use of Cookie Walls
On June 19, 2020, the French Conseil d’État (“Council of State”) issued a decision partially annulling the Guidelines of the French Data Protection Authority (the “CNIL”) on cookies and other tracking tools (“Guidelines”). The Council of State ruled that the CNIL’s Guidelines could not prohibit the use of ‘cookie walls’, a practice which consists of blocking user access to a website where the user refuses to consent to cookies and other tracking tools. Nevertheless, the Council of State confirms the Guidelines on other key points, such as the requirement to facilitate the right to withdraw consent to cookies, the retention period for cookies and the information requirement for cookies not subject to a consent requirement.
French Council of State Upholds €50m CNIL Fine against Google
On June 19, 2020, the French Conseil d’État (“Council of State”) issued a decision upholding the €50 Million fine imposed against Google LLC by the French Supervisory Authority (the “CNIL”). On January 21, 2019, the French CNIL had issued a fine against Google’s U.S. headquarters for failure to comply with the EU General Data Protection Regulation’s (“GDPR”) fundamental principles of transparency and legitimacy. Please refer to the relevant Sidley Data Matters’ blog post on the CNIL decision here. The CNIL found that Google had insufficiently informed Android users about their data processing activities, given the complexity of Google’s privacy policy and terms & conditions, and that the consent obtained from them through the use of pre-ticked boxes was insufficient to serve as a legal basis for processing used for targeted advertising. This was the first and highest regulatory fine the CNIL had issued on the basis of the GDPR.
German DSK Issues GDPR Fining Methodology Guidelines
Recently, the Association of German Data Protection Authorities (“Datenschutzkonferenz” or “DSK”) issued guidelines setting a GDPR fining methodology (“Fining Methodology”). GDPR enforcement across the EU has picked up over the past year. This Fining Methodology has been issued at the time of a significant increase in GDPR enforcement action across the EU. The European Data Protection Board (“EDPB”) reported a total of 281,088 national enforcement actions being initiated as of May 22, 2019 (approximately one year after the GDPR’s entry into application). Since then, data protection authorities across the EU have been initiating enforcement and fines on a daily basis. In particular, in the UK, the Information Commissioner’s Office (“ICO”) has issued two notices of intention to fine of €114m and €215m for failure to implement appropriate data security measures.
European Data Protection Board Adopts Data Protection by Design and by Default Guidelines
On 13 November 2019, the European Data Protection Board (“EDPB”) adopted guidelines on the GDPR’s data protection by design and by default principle (“Guidelines”). The Guidelines provide further guidance into the technical and organizational measures and safeguards that data controllers must take into account when designing their processing activities. The EDPB encourages early consideration of data protection by design and by default principles (“DPbDD”) and considers DPbDD to be at the forefront of GDPR compliance. Data controllers, processors and technology providers should consider re-assessing their processing operations and products against the standards put forward in the Guidelines.
Dutch Supervisory Authority Opines on Use of Cookie Walls
Recently, the Dutch Supervisory Authority (the “Autoriteit Persoonsgegevens” or “Dutch SA”) has taken the position that the use of so-called “cookie walls,” whereby website access is made conditional upon the provision of consent to tracking cookies, is not compliant with the EU General Data Protection Regulation (“GDPR”).
French CNIL Fines Google €50m for Violation of GDPR’s Transparency and Consent Requirements
On January 21, 2019, the French Supervisory Authority (the “Commission Nationale de l’Informatique et des Libertés” or “CNIL”) issued Google’s U.S. headquarters (“Google”) with a fine of €50m for failure to comply with the EU General Data Protection Regulation’s (“GDPR”) fundamental principles of transparency and legitimacy. The CNIL found that the general structure of Google’s privacy policy and terms & conditions was too complex for the average user and that Google, by using pre-ticked boxes as a consent mechanism, failed to establish a legal basis for data processing to deliver targeted advertising. This is the first regulatory fine the CNIL issued on the basis of the GDPR’s penalty authorities, and it marks a strong enforcement signal to organizations subject to the CNIL’s jurisdiction moving forward. (more…)
EDPB Issues Long-Awaited Guidance on Territorial Scope of the GDPR
On November 23, 2018, the European Data Protection Board (“EDPB”) published draft guidelines seeking to clarify the territorial scope of the GDPR (“Guidelines”). The Guidelines have been eagerly awaited, particularly by controllers and processors outside of the EU looking for confirmation as to whether or not the EU data protection rules apply to them. The Guidelines largely reaffirm prior interpretations of the GDPR’s territorial application under Article (3)(1), and offer essential guidance with respect to the GDPR’s – heavily debated – extraterritorial application under Article (3)(2). The GDPR applies to companies established in the EU as well as companies outside of the EU that are “targeting” individuals in the EU (by offering them products or services) or monitoring their behavior (as far as that behavior takes place in the EU).
The proposed Guidelines are open for public consultation until January 18, 2019. It remains to be seen whether and how any outstanding issues will have been addressed upon conclusion of the consultation. (more…)
EU Parliament Adopts Blockchain Resolution
On October 3, 2018, the European Parliament passed its long awaited resolution on distributed ledger technologies and blockchains (the “Blockchain Resolution”). The Blockchain Resolution was adopted to protect and empower EU citizens and businesses with respect to the specific issues that arise in relation to the blockchain or “distributed ledger” technology, one of which being the tension with data protection rights and the GDPR in general. (more…)