We set out below our summaries and key takeaways from both decisions which help to highlight the latest approach of both the courts and European data protection regulators in relation to cookie consent.
The European Commission’s Medical Devices Coordination Group (MDCG) has published a much-anticipated guidance on the qualification and classification of software devices as medical devices (MDSW)1 under the new Medical Devices Regulation (MDR) and In Vitro Diagnostic Regulations (IVDR) (the Guidance, available here). The Guidance seeks to provide clarification to medical software manufacturers with respect to (i) when software is considered a device (qualification) and (ii) what risk category the device falls into (classification).
Under the currently applicable rules, supported by guidance set out in MEDDEV 2.1/6,2 most software devices are classified as low risk. However, the new classification rules set out in the MDR, in particular Rule 11, significantly change the classification of MDSW, with many software devices to be generally considered medium- or even high-risk devices.
Here we examine which areas have been clarified by the Guidance and which topics remain open to interpretation.
UK ICO Commissioner Liz Denham, who serves as Conference Chair, welcomed attendees at the public session and provided a brief summary of what transpired at the Commissioners’ closed door sessions. She noted that “privacy” has gone “mainstream.” People around the world expect more information about how their data is used. She stressed the importance of future international collaboration and regulatory cooperation to develop shared strategies and tactics “to protect people from big companies.”
Commissioner Denham also highlighted the increased focus on the role of data protection as a relevant consideration in competition analysis by international regulators. She noted that the International Privacy Commissioners’ Conference, and the ongoing assembly of global regulators, resolved to be more transparent in the future with respect to the regulated community and other interested parties. Finally, she hinted that a new name for the group would be announced before the 2019 conference concludes.
*Jan Yves Remy is a former Sidley Austin Associate and now serves as the Deputy Director at Shridath Ramphal Centre for International Trade Law, Policy and Services at the University of the West Indies in Barbados. As with all posts, this article is for your informational purposes only; Sidley Austin does not have offices in or practice law in Barbados.
Today, more than 120 countries have privacy and data protection laws or regulations in place. Many of the new or modernized laws tend to be based on comprehensive legislation, rather than sectoral rules, as data needs to move across industry groups and borders. With its new data protection bill, Barbados is planning to join the ranks; this is a significant move, and it is one fueled at least in part by the entry into force of the European Union’s General Data Protection Regulation (“GDPR”) on May 25, 2018. The GDPR was designed to harmonize data protection laws across Europe and to protect EU residents’ data privacy rights; and, its coming triggered significant privacy and data protection compliance activities amongst organizations doing business in the EU and working with the personal data of EU residents.
The UK’s Information Commissioner’s Office (“ICO”) has recently issued a draft version of its statutory code of practice for sharing of personal data between controllers under the GDPR and the UK Data Protection Act 2018 (“DPA”) (the “Draft Code”) which provides a number of practical recommendations which controllers should take into account when sharing personal data.
The High-Level Expert Group on Artificial Intelligence (“AI HLEG”), an independent expert group set up by the European Commission in June 2018 as part of its AI strategy, has published its final Ethics Guidelines for Trustworthy Artificial Intelligence (“AI”) (the “Guidelines”).
These Guidelines form part of a wider focus by the Commission on AI, with President-elect of the European Commission, Ursula von der Leyen commenting most recently on July 16, in her proposed political guidelines, that: “In my first 100 days in office, I will put forward legislation for a coordinated European approach on the human and ethical implications of Artificial Intelligence…”.
On 3 July 2019, the UK’s Information Commissioner’s Office (“ICO”) published new guidance on cookies and similar technologies (“Guidance”) in conjunction with a new blog post: “Cookies – what does ‘good’ look like?” which aims to provide “myth-busting” advice on common cookies uncertainties. You can find a full copy of the new guidance here and a link to the ICO’s blog post here. With its new Guidance, the ICO has formally recognised the stricter standards of consent and transparency now in force under the GDPR.
Today we saw the ICO issue a notice of its intention to fine British Airways £183.39m for infringements of the GDPR – a record fine and the largest seen in the UK and the EU. The proposed fine relates to a cyber incident which BA notified to the ICO (as BA’s lead data protection authority, DPA) in September 2018. The incident involved the theft from the BA website and mobile app of personal data relating to customers over a two-week period. In terms of next steps, BA now has an opportunity to make representations to the ICO as to the proposed findings and sanction.
The 25th of May, 2019 marked a year since the EU General Data Protection Regulation (“GDPR”) came into force. For most in privacy, involvement with the GDPR has been ongoing for well over this year, but on the first anniversary of the GDPR we take an opportunity to look back and reflect on where we are now in relation to some key areas of interest including enforcement action, privacy litigation, breach notification and developing guidance from the European Data Protection Board (“EDPB”).
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”).