In a decision with significant implications for international trade and cross-border data flows, the EU’s highest court – the Court of Justice of the European Union (“CJEU”) ruled on 16 July 2020 that a key legal mechanism (called the EU-US Privacy Shield program) used to enable transfers of personal data from the European Union (“EU”) was invalid, while also potentially requiring additional protections to be implemented when another key transfer mechanism (called Standard Contractual Clauses) is used. The case – Data Protection Commissioner v. Facebook Ireland, Max Schrems (“Schrems II”) – considered the validity of the EU-US Privacy Shield (“Privacy Shield”) program (a privacy certification made available for US organizations through an agreement between the European Commission and the US government) and Standard Contractual Clauses (“SCC”) (a form of international data transfer agreement made available for use by the European Commission).
On 20 March 2020, the European Data Protection Board (“EDPB”) released a statement on the protection of personal data in connection with measures that public authorities and business organizations (including employers) are taking to address the Coronavirus (COVID-19) pandemic. This statement is an extension of the statement released by the EDPB chair on 16 March 2020, (which can be accessed here). In its latest statement, the EDPB emphasises that EU data protection law (in particular, the EU General Data Protection Regulation (“GDPR”)) does not stand in the way of measures adopted to fight against COVID-19 – if these measures are necessary, proportionate and consistent with safeguards required under EU Member State laws. The EDPB statement also provides useful guidance for organisations to consider when adopting measures to lawfully process personal data during this time.
Overall, while EDPB statement may provide some reassurance to organizations with respect to COVID-19 measures, organizations will be advised to consider guidance issued by specific EU Member State data protection authorities as well. In particular, specific EU Member State data protection authorities have begun issuing COVID-19 guidance that is, at least in certain respects divergent: while certain data protection authorities are adopting a more restrictive approach (for example, the French CNIL), others are more permissible (for example, the UK’s Information Commissioner’s Office).
The COVID-19 crisis has created significant cybersecurity risks for organizations across the world, particularly arising from remote working, scams and phishing attacks, and weakened information governance controls. These risks warrant attention by legal counsel and information security officers in light of potentially significant adverse legal, financial and reputational consequences that could arise – all while the organization is dealing with effects of a global pandemic.
In addition to identifying the cybersecurity risks, we also consider key measures that organizations can consider adopting to reduce such risks, including measures recommended by the UK’s National Cybersecurity Centre (NCSC), EU’s Agency for Cybersecurity (ENISA) and the US Federal Bureau of Investigation. The speed at which the COVID-19 crisis has evolved has meant that many organizations have not been able to deploy effective risk-reducing measures in a timely manner.
With the use of CCTV on the rise, it has become increasingly important for controllers to find a framework in which the conflicting rights of those who are subject to such surveillance are balanced. In its recent decision of TK v Asociaţia de Proprietari bloc M5A-ScaraA EU:C:2019:1064 (TK), the CJEU considered whether the processing carried out by CCTV cameras was necessary and proportionate for the purposes of legitimate interests pursued by the controller.
Further to the publication of the ICO’s notices of intention to fine British Airways and Marriott in July 2019, the ICO has recently issued a statement delaying the issuance of both GDPR fines which had originally been expected by the end of 2019. (The ICO’s initial notices of intention to fine had stated that British Airways would face a fine of £183m ($228m) and Marriott, a fine of £99m ($123m). We reported on these here: British Airways and Marriott.)
This article first appeared on Thomson Reuters Regulatory Intelligence.
The summer of 2018 may be regarded as a pivotal time in the history of data privacy laws. The European Union’s General Data Protection Regulation (GDPR) came into effect in May 2018, the California Consumer Privacy Act (CCPA) was signed into law in June 2018 (and comes into effect on January 1, 2020), and a draft of India’s Personal Data Protection Bill (India DP Bill) was released in July 2018 (and is now under review by India’s government).
These developments, and more generally, the recent proliferation of data privacy laws around the world (notably, in Australia, China, Brazil, Hong Kong, and Singapore) represent a compliance challenge for many multinational organizations.
The expert committee set up by the Government of India recently published a new draft data privacy draft bill called the Personal Data Protection Draft bill 2018 along with a detailed companion report. This significant development brings India closer to a comprehensive law for personal data protection. The draft bill is modelled on the European Union’s General Data Protection Regulation (GDPR). If enacted into law, the draft bill would impose significant obligations on organizations, whether operating inside or outside India, including mandatory localization of personal data. The Government of India has invited comments to the draft bill by 30 September 2018. (more…)
On October 3, 2017, the Article 29 Working Party (“WP29”) adopted draft guidelines regarding notification of personal data breaches under the EU’s General Data Protection Regulation (“GDPR”) which will require breach notification within 72 hours of awareness of a breach. (“Draft Guidelines”) (The Draft Guidelines appear to have been released for public comment during the week of 16th October). The deadline for comment is November 24, 2017. The Draft Guidelines are available here. The WP29 is a collective of EU data privacy supervisory authorities (“DPAs”). (more…)
On February 2, the Italian Data Protection Authority, known as the “Garante,” imposed a fine of EUR 5,880,000 on a UK money transfer company that it found to be in violation of Italian data privacy rules. This is the largest ever publicly-known fine imposed by an EU data protection authority, and it approaches the level of fines that are likely to be imposed under the EU’s General Data Protection Regulation (“GDPR”) that will come into force in May 2018. Although the GDPR is not yet in force, the Garante’s enforcement action shows that European data protection authorities are willing to levy the kind of fines allowed by the GDPR.
A recent speech by the Financial Conduct Authority (“FCA”) Director of Specialist Supervision, Nausicaa Delfas, delivered at the Financial Times’ Cyber Security Summit, shows that the FCA, which is the leading financial services regulator in the United Kingdom, is taking the issue of cyber security seriously and that it believes new approaches are needed to combat the threat to financial services firms.
The FCA’s concerns are consistent with those being expressed by US banking regulators and the Group of Seven (G-7) industrial nations who agreed on a set of guidelines to combat cyber risks affecting global financial institutions.