NHS’ Plans to Share Patient Records with Third Parties
NHS Digital (the national custodian for health and care data in England) in May 2021, announced a new data sharing initiative called the General Practice Data for Planning and Research (GPDPR) service. The launch of the GPDPR could result in the historical medical records of up to 55 million patients in England being shared with third parties.
Although the GP data collection was set to take place as of July 1, 2021, on June 8, 2021 it was announced that the launch will be postponed to September 1, 2021.
European Commission Adopts New Standard Contractual Clauses
The European Commission (EC) on June 4, 2021 adopted a new set of Standard Contractual Clauses for international data transfers (New SCCs). The New SCCs take into account the Court of Justice of the European Union’s (CJEU) decision in Schrems II, requirements under the EU General Data Protection Regulation (GDPR), and according to the EC “address the realities faced by modern business”. In particular, as it relates to companies ongoing Schrems II assessments the New SCCs provide details around the steps an importer should take when subject to a request for disclosure from a public authority, and helpfully confirm that in carrying out the assessment of a third country legal framework the factors which can be taken into consideration.
UK Moves to Reconcile Antitrust and Data Protection Enforcement in Digital Sectors
Last year, to address the increasing overlaps between data protection and antitrust enforcement, the UK launched the Digital Regulatory Cooperation Forum (DRCF). The DRCF brings together the four UK regulators most involved in digital matters (i.e., the Competition and Markets Authority (CMA), the Information Commissioner’s Office (ICO), the Office of Communications (Ofcom) and the Financial Conduct Authority (FCA)). Its main objective is to enable coherent and informed regulation of the UK digital economy.
SCCs, Adequacy, and Guidance: Latest Updates on International Data Transfers
The next few weeks will likely be very busy for companies on the GDPR international data transfer front as there have been a number of key European developments over the last few days including: (more…)
Transferring EU Data To US After New Contractual Safeguards – A Proposal to Notify Intelligence Agencies of “US Person” Prohibition on Targeting SCC Transfers
This article was first published by Law360 on May 17, 2021.
In light of new standard contractual clauses, or SCCs, to be issued shortly by the European Commission, as well as imminent new guidance from the European Data Protection Board, companies transferring personal data to the U.S. should consider taking steps to help ensure their data transfers are recognized as U.S. person communications.
This article sets forth possible text that companies could adopt as a supplemental measure to inform U.S. intelligence agencies that data transfers under SCCs are prohibited from being targeted.
Using Data De-Identification to Protect Companies
Many companies hope to benefit from amassing large amounts of data by mining it for market insights, creating internal business models, and supporting strategic, data-driven decisions. But as companies collect and store increasingly enormous volumes of data, they may unknowingly take on significant legal risks, including potential violations of data privacy laws and increased exposure to U.S. litigation discovery obligations. One way that businesses can mitigate these risks is to de-identify the data they collect and store.
Part II – Digital Health Passports in Europe: Amended Proposal for a Digital Green Certificate and Eligible Testing Methods
In March 2021, the European Commission released a proposal for the creation of a “Digital Green Certificate,” which will allow EU citizens to travel easier throughout the EU during the COVID-19 pandemic. Last week, the EU Member States agreed on some proposed changes to the proposal, including strengthening of the data privacy provisions. According to the proposal, in order to obtain a Digital Green Certificate, individuals must prove that they have been vaccinated, present a negative test result, or have recently recovered from COVID-19. The proposal allows the issuance of a certificate for all COVID-19 vaccines, which have received an EU-wide marketing authorisation, however only the results of certain in vitro diagnostic tests will be considered valid.
EU Commission Invites Stakeholders Feedback on Draft AI Regulation
On April 26, 2021, the European Commission announced that its draft proposal for the new EU Artificial Intelligence Regulation (“Draft AI Regulation”) is currently indicated to be open for feedback until July 15, 2021.* The Draft AI Regulation was published on April 21. Please refer to our blog post here that provides an overview of the Draft AI Regulation and its potential impact.
Developments in Cookie Regulation: French CNIL Declares Intent to Audit Websites for Cookie Compliance
On April 2, 2021 the French Data Protection Authority (the “Commission Nationale de l’Informatique et des Libertés” or “CNIL”) published its intent to start auditing websites for compliance with cookie regulations. This publication comes following a large number of developments and actions taken by the CNIL to further improve and guide organizations through cookie compliance. The CNIL had issued several recommendations, guidelines and cookie tools to raise awareness on the importance of this topic, with a final set of guidelines published on October 1, 2020 following public consultation rounds (“Cookie Guidelines”). The CNIL had determined that a 6-month grace period would apply following publication of the Cookie Guidelines. This grace period ended on April 1, 2021 and the CNIL now expects companies to be compliant with its recommendations and guidelines. The CNIL has confirmed that it may make use of the totality of its corrective powers to remedy non-compliance with the rules, including issuing (public) sanctions. In light of the increase in scrutiny on cookies in the EU (and the US pursuant to certain state laws), organizations with websites / platforms operating in the EU (and U.S.) may want to reconsider their cookie practices and start carrying out cookie audits.
EU Commission Issues Draft AI Regulation
On April 21, 2021, the European Commission (EC) issued its eagerly awaited draft proposal on the EU Artificial Intelligence Regulation (Draft AI Regulation) – the first formal legislative proposal regulating Artificial Intelligence (AI) on a standalone basis. The Draft AI Regulation is accompanied by a revision of the EU’s rules on machinery products, which lay down safety requirements for machinery products before being placed on the EU market. The new draft Machinery Products Regulation – proposed by the EU Commission on the same day – intends to tackle safety issues that arise in emerging technologies. The Draft AI Regulation (which appears to have borrowed a number of principles from existing EU legislation, including the EU General Data Protection Regulation 2016/679 (GDPR)) has an intentionally broad scope, and regulates the use of AI in accordance with the level of risk the AI system presents to fundamental human rights and other key values the EU adheres to. AI systems that are considered to present an “unacceptable” level of risk are banned from the EU, and “high-risk” systems are subject to strict requirements. AI systems which are considered to present a lower risk level are subject to transparency requirements or are not regulated at all. Companies engaged in the development, manufacturing, importation, distribution, servicing, and use of AI – irrespective of industry – should assess to what extent their products are implicated and how they will address any regulatory requirements they are subject to. The Draft AI Regulation foresees maximum administrative fines of up to €30m or 6% of total worldwide annual turnover in the event of non-compliance – meaning fines are higher than the ones under the GDPR.