Data is key to innovation, growth, and staying competitive in the payments sector. In recent years, there has been a massive increase in the volume of data maintained and processed by payment service providers. Regulators and policymakers on both sides of the Atlantic are imposing increasingly prescriptive cybersecurity regulatory frameworks and closer scrutiny upon companies, while new and escalating cybersecurity threats challenge standard safeguards.
For the latest insights on the risks posed and effective ways to mitigate them, please join OneTrust DataGuidance and Sidley for a webinar focusing on the cybersecurity issues confronting the payments and fintech sectors in the EU, UK, and U.S.
The Supreme Court has recently granted Google permission to appeal the Court of Appeal’s decision in the case of Lloyd v Google LLC () EWCA Civ 1599). The class action brought against Google by Richard Lloyd, the former editor of consumer protection rights group “Which?”, relates to the alleged tracking of personal data by Google of 4.4 million iPhone users and subsequent selling of the users’ data to advertisers, without the users’ knowledge and consent. Google is now appealing the Court of Appeal’s decision granting Mr Lloyd permission to serve his representative action on Google. This landmark case is of particular importance as it has the potential to significantly widen the scope for claims to be brought in respect of a failure to protect data under the GDPR.
There has been a rapid increase in collaboration between fintechs and other technology firms and more traditional payment service providers (PSPs) such as banks, merchant acquirers, and money transmitters. While fintechs and technology firms are often seen as direct competitors of traditional PSPs, in a market driven by innovation, both sides of the market increasingly consider collaboration a mutually beneficial way to play to each participating firm’s strengths. For more traditional PSPs, the technologies that a fintech or technology firm develops can help enhance and streamline, and in some cases modernize, the services provided to customers. For a fintech or technology firm, partnering with a PSP can provide an efficient and effective way to expand into the payment services market, particularly for customers who are more inclined to use traditional PSPs.
Regulators are monitoring these developments with growing interest and with an eye to potential risks to customers and markets as well as their ability to supervise regulated firms and their operations. This post highlights a number of EU/UK regulatory issues that fintechs, technology companies, and PSPs should consider when collaborating with one another.
Join Us for Post-Decision Coverage of the Schrems II Case
On July 16, the Court of Justice of the European Union will release its much anticipated decision in the Schrems II case, evaluating the validity of key data transfer mechanisms, including Standard Contractual Clauses. The decision could impact the future of international data flows and your business.
We will host an immediate reaction and analysis with leading industry panelists on this landmark decision to understand its impact and what the future may hold.
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.
These informal video chats, moderated by Sidley partner Alan Raul, are designed to help fill the COVID-19 induced privacy discussion drought. We look forward to hearing what is on the mind of key data protection and cybersecurity thought leaders from both public and private sectors. Each chat will be relatively brief, leaving some time to address participant questions via our virtual space. Please feel free to suggest any topics you would be interested to hear addressed by contacting email@example.com.
On June 25, 2020, Sidley partner, Alan Raul, founder and co-head of Sidley’s privacy and cybersecurity practice, hosted Bruno Gencarelli, head of International Data Flows and Protection at the European Commission, for a Monitor-Side Chat.
The discussion focused largely on the Commission’s report on two years of the GDPR which was issued on 24 June 2020. Key themes of the report include:
- EU data protection authorities (“DPAs”) should increase their efforts towards the adoption of a harmonised approach to responding to cross-border investigations;
- a call for greater resources to be given to DPAs by EU Member States to ensure the GDPR is sufficiently enforced;
- a need for greater consistency among EU Member States on interpretations of the GDPR in national laws in order to avoid unnecessary burdens on companies; and
- greater utilisation of the data portability right under the GDPR to ensure individuals have greater involvement in the digital economy by enabling them to switch between different service providers and make use of other innovative services.
On 19 February 2020, the European Commission published a white paper on the use of artificial intelligence (“AI”) in the EU (the “White Paper”). The White Paper forms part of the Commission President, Ursula Von der Leyen’s, digital strategy, one of the key pillars of her administration’s five year tenure, recognising that the EU has fallen behind the US and China with respect to the strategic deployment of AI. To tackle this problem, the Commission proposes a common EU approach to ‘speed up the uptake’ of AI in the EU, whilst also tackling the human and ethical implications of AI’s fast growing use in the EU, including the possible downsides of its use, such as opaque decision making and hidden, embedded gender and racial discrimination. In order to achieve a common EU approach to AI, and to create “trustworthy” AI that can rival developments in the US and China, the Commission proposes the creation of a regulatory framework for AI.
Ongoing confusion about lawful basis for data processing in a clinical study environment: European Data Protection Board and European Commission on the one hand and certain Member States on the other differ on the correct approach. Swiss sponsors operating clinical studies in the EU face ongoing uncertainty around the appropriate lawful basis for processing study subject personal data in spite of guidance being published by the European Commission and the European Data Protection Board.