The European Commission has drafted amendments to the adequacy decisions that underpin the European Union’s Standard Contractual Clauses (“SCCs”) that allow businesses to transfer personal data originating in the European Economic Area (“EEA”) outside of the EEA. While the Commission has not published the full text of its proposals, they may have a significant practical impact on all businesses that rely on SCCs for international data transfers, including to the United States.
Now that we are into September, you may be hearing more about the Privacy Shield for transfers of personal data from the EU to the U.S., and in particular the 9 month “grace period” to fully implement the Privacy Shield for companies that certify within the first two months that the Privacy Shield is available for certification. The Department of Commerce began accepting certifications on August 1, 2016, and so the opportunity to take advantage of the grace period closes on September 30, 2016. This grace period does not, however, absolve companies of the responsibility to implement Privacy Shield principles and substantive obligations upon certification. Rather, it permits companies nine months from the date they certify to the Privacy Shield to negotiate amendments to their third party contracts with all vendors or other business partners that receive personal data from the certifying company.
From Monday August 1, 2016, companies will be able to self-certify under the EU-US Privacy Shield (www.privacyshield.gov). The Privacy Shield was adopted on July 12, 2016 and is intended as a replacement to the now invalidated Safe Harbor framework. Companies preparing to self-certify their adherence to the Privacy Shield Principles should carefully review the associated documentation to understand the new requirements and consider carrying out a gap analysis against their existing privacy program. This is particularly important given the potential for increased enforcement action from the US Federal Trade Commission against participating companies that fail to comply with the Principles. (more…)
With the final Privacy Shield decision, the European Commission and United States Government have concluded several years of discussion and negotiation concerning the Safe Harbour framework and the new Privacy Shield. The effort and thought by negotiators, EU institutions, and stakeholders alike to reach this point reflect the importance of private life and data protection in EU society and the significance of data flows to transatlantic commerce and discourse. Sidley Senior Counsel Cam Kerry and Sidley Partner Maarten Meulenbelt discuss how the Privacy Shield meets the requirements of EU law and answer criticisms in Privacy Shield: Essentially Equivalent. For more, click here.
After many months of negotiation and review the EU-US Privacy Shield was formally adopted by the European Commission on July 12, 2016. This came just a few days after the Article 31 Committee approved the updated text of the EU-US Privacy Shield on July 8, 2016.
The final text of the much anticipated EU-US Privacy Shield has been sent by the European Commission for review and approval to the Article 31 Committee, which includes representatives from all 28 Member States. Approval by the Article 31 Committee will pave the way for a final decision by the Commission adopting the Privacy Shield, expected on 11 July, 2016. If approved, the Privacy Shield will take effect as soon as the US Department of Commerce establishes a new process for US companies that wish to use the Privacy Shield as a legal basis for data transfers of personal data from the EU to certify in accordance with the new framework. Businesses should examine the final Privacy Shield documents and requirements and determine whether to proceed with certification once the Privacy Shield is approved.
As the world began to grapple with the implications of the UK’s vote to withdraw from the European Union, or “Brexit,” the UK Information Commissioner has sought to provide reassurance, issuing a statement reinforcing continuity of data protection principles and a commitment to the digital economy.
On 6 June 2016, the Hamburg Data Protection Commissioner issued fines against three international companies for failing to implement alternative data transfer mechanisms following the invalidation of Safe Harbor in October 2015.
Today, alleged extracts from the impending Article 29 Working Party Opinion on the adequacy of the Privacy Shield were leaked. These extracts indicate that a number of clarifications on the Privacy Shield documents will be required before the Working Party can confirm that the Privacy Shield, in its view, ensures a level of protection that is essentially equivalent to that in the EU. The full opinion is due to be published on Wednesday 13 April, and will form part of the package for consideration by the European Commission.
On February 29, 2016, the European Commission released the legal texts that will implement the EU-U.S. Privacy Shield, as well as a communication summarizing the actions taken over the last few years to “restore trust in transatlantic data flows since the 2013 surveillance revelations.”
The documents include a draft adequacy decision, the Privacy Shield principles that companies will have to abide by, as well as written commitments by the U.S. government, to be published in the U.S. Federal Register, on the enforcement of the arrangement, including assurance on the safeguards and limitations concerning access to data by public authorities. On March 2, 2016, Sidley and DataGuidance presented a live webinar to investigate the latest details of the agreement featuring Sidley partners William Long, who advises on European privacy law, Maarten Meulenbelt, who advises on EU regulatory affairs, Alan Charles Raul, co-leader and founder of Sidley’s Privacy, Data Security and Information Law practice, and Cameron Kerry, Senior Counsel and former General Counsel and Acting Secretary of the United States Department of Commerce.